"Those who hold power in civil society, who are not women, design its norms and institutions, which become the status quo. Those who hold power in political systems that were not designed by women and from which women have been excluded, write the legislation that establishes the dominant values."
Catherine Alice Mackinnon
The history of women is the history of chronic discrimination. The Bible prophesied it more than 3,000 years ago:
"And God said to the woman: Because you have eaten of the tree that I forbade you to eat, you will bear children in pain, you will go after your husband and he will dominate you" (The Bible. Genesis 3:16).
In Spain, until 1931, women did not have the right to vote, substantially because they were considered incapable, intellectually inferior. The stereotype of intellectual inferiority has been a constant in our social and legal history that has limited and continues to limit female talent to disturbing extremes.
Until 1975, the "marital license" treated women as minors subject to marital authority and drastically limited the capacity of married women to act (see reference 1 at the end of the text), extolling marital discipline through criminal figures such as "uxoricide honoris causa" (2); the degrading figure of the "deposit of the married woman" (3); the euphemistic prohibition of the work of married women contained in the Spanish Labor Code (4) or the proscription of women from accessing the judicial or fiscal career (5) under the "powerful" reason of such works being contrary to the "sense of delicacy consubstantial in women."
Far-reaching legal changes did not reach Spain until the second half of the 20th century, with the Spanish Constitution of 1978, enshrining the principle of equality and the right to non-discrimination under the reinforced canon of fundamental rights. However, the deficiencies of traditional legal tools to make the diction real soon became evident.
Magical formalism is thinking that the mere invocation of the law entails its application.
Gender inequalities have been a constant in a history called "of man" and, despite the passage of centuries, are still present in all conceivable social spheres. We are not free in democratic countries either, where they survive under prejudices immune to the laws. They are the same stereotypes of other centuries, which have always been there and continue to be, in society, the economy, law, politics?
The laws of this century do not discriminate against women for being women, they discriminate against the values associated with femininity.
But the stereotypes of the 21st century have mutated, have been democratized and have known how to adapt and survive disguised as legal equality. They are everywhere, although it is not easy to detect them because they are integrated into our perceptual fabric and it is extraordinarily difficult to identify them as something foreign to our own way of thinking. Therefore, they are part of our daily and professional life and we use them continuously because they facilitate our understanding of the world, they help us classify people, fulfilling their double mission: cognitive saving and the perpetuation of the established social order.
Our Law is a legal constellation of gender
The division between the masculine and the feminine has been crucial for the dual system of classical liberal thought that has been structured on opposing pairs: rational/emotional; active/passive, power/sensitivity; objective/subjective; abstract/concrete; universal/particular etc. In turn, these dualisms are sexualized, so we identify the rational, active, power, objective, abstract, universal as masculine and the feminine with the other half. But the dichotomy exposed is not only operative to classify people according to their sex, but also to hierarchize them, because one side of the dualisms (the masculine ones) dominate and define the other. Our legal system has been built, predominantly, taking as a reference of "social values" the dualisms considered superior and associated with the masculine, devaluing the values associated with femininity.
According to sociologist Carol Smart:
"When a man and a woman are facing the Law, it is not the Law that fails to apply objective criteria to the female subject, but rather that it applies objective criteria and these are masculine. Therefore, insisting on equality, neutrality and objectivity is, ironically, insisting on being judged under masculine values."
The laws of this century do not discriminate against women for being women, they discriminate against the values associated with femininity. This translates into unequal protection of the experiences, concerns and aspirations of men and women, through their sexual association. Precisely for this reason, from iusfeminism the "effectiveness" of equality laws based on the idea of comparison was criticized, because they incur in the error of demanding identity with the model situation, dispensing with gender differences, which makes it difficult to recognize (absent) rights to women, if it is not by pretending to grant privileges.
Let's see some examples.
At the international level
- The absence of social reproach and historical immunity that has existed with respect to sexual violence in armed conflicts, which mostly affects women and minors and which has not been considered war crimes, genocide or crimes against humanity until 1993-94 (6), leaving unpunished the crimes suffered by thousands of women and minors of all times. The body of women has ancestrally been the battlefield for peoples and for masculine individuals who fought each other. These were less serious crimes executed by the men of all sides of the conflict, good and bad, victors and vanquished.
At the internal level
- The Spanish Civil Code sets the standard of civil diligence set in "the good father of the family."
- In the Penal Code, abuse and sexual assault are unfolded, with greater punitive reproach derived from the use of force, which is unlikely in the case of female victims, due to their socialization, and unthinkable in the case of minors sexually abused in the family environment (statistically most cases).
- The crime of sexting (disclosure of intimate images) of unquestionable gender impact, is penalized from 3 months to 1 year in prison, however the disclosure of industrial secrets from 3 to 5 years.
- Social law penalizes labor and contributively the time dedicated to family care and the calculation of contributions of part-time work, having been declared discriminatory on grounds of sex on two occasions (7).
- Feminized diseases (fibromyalgia) are excluded from the list of diseases in the regulatory norm of disabilities (8).
- Different indemnities are established for deformation of genital organs, depending on sex (9).
- A (worse) procedural and substantive treatment is given to gender benefits (pregnancy risk and natural breastfeeding), in comparison with other benefits of the system (temporary disability).
Justice
Jurisprudence is not free from the harmful influence of sexist dualisms either, because those of us who judge are not immune to conceptions. The examples are reproduced in all judicial systems of the world, from Zimbabwe to Canada.
On October 11, 2017, the Court of Oporto (Portugal), justified gender violence, in the sentenced case because:
"The adultery of the woman is a very serious attack on the honor and dignity of the man that in the Bible is punished with death."
On July 25, 2017, the European Court of Human Rights condemned the State of Portugal for having incurred in multiple discrimination (on grounds of sex and age) through a judgment of the Supreme Court in which the substantial reduction of compensation recognized to a quinquagenarian woman for medical negligence that caused urinary incontinence and impossibility of maintaining sexual relations was justified because:
"At that age and with the children emancipated she should only take care of her husband (?.) , and because at her age sex is no longer as important as in younger ages."
In Spain, the Supreme Court (Social Chamber), in its judgment of April 19, 2011, declared discriminatory on grounds of sex, the female uniform consisting of skirt, stockings, apron and cap assigned to the nursing assistants of an Andalusian Hospital, while the men wore the sanitary pajamas. This judgment meant a jurisprudential advance of gender with respect to the previous criterion of the Chamber, but instead dismissed the alleged violation of the right to privacy and dignity of the workers, which the appellant union also claimed, because:
"The use of the skirt in normal dimensions is not only socially accepted as something absolutely common, but is even linked on occasions with traditional or historical ideas of feminine elegance, when, on the other hand, and in relation to this, there is no inadequate or excessive physical exhibition that is not totally and absolutely normal from the point of view of our social uses."
These and other examples show that the social values that underpin our law are not social but predominantly associated with masculinity, which negatively affects the other half of the population that is not represented by a law that has its own gender and is not the feminine one. A law that unequally protects the aspirations of men and women generating gender inequities. Hence the importance of the gender perspective as a corrective legal tool to better understand the causes of structural inequalities between women and men and to draw legal strategies that allow to detect, correct and compensate unequal situations on grounds of gender. The objective is to achieve equality (of result) between women and men.
It is also essential to integrate women in a balanced way in positions of social relevance and especially in the judicial summit from where the binding jurisprudence is forged, because integrating them implies integrating, in a natural way, female experiences in judicial decisions of high social impact.
The extension to women of rights genuinely thought for men gives rise to new inequalities. Gender discrimination is a systemic, structural and permanent phenomenon, therefore it must be combated in the same way, far beyond specific equality laws, incorporating the gender perspective in the elaboration, application and interpretation of the laws so that it crosses transversally the entire legal system and also public policies.
Article published in The Huffingtonpost
References:
(1) The marital license was repealed with Law 14/1975, of May 2.
(2) Uxoricide honoris causa, in force until the reform of the Penal Code of 1963, involved the exemption or mitigation of the penalty for the husband who killed the wife caught in adultery.
(3) This figure remained in force until the reform of the Spanish Civil Code of 1958, promoted by the lawyer Mercedes Formica.
(4) The Labor Code of 1938, was one of the eight fundamental laws, expressly repealed by the Spanish Constitution of 1978.
(5) Such limitation was suppressed by law 96/1966.
(6) International Criminal Tribunal for the former Yugoslavia and also, in the case of Rwanda.
(7) STJUE of November 22, 2012 (Caso Elbal Moreno C-385/11) and STJUE of May 8, 2019 (Caso Villar C-161/18). STC July 2019.
(8) RD 1971/1999 of December 23, of procedure for the recognition, declaration and qualification of the degree of disability.
(9) Order ESS/66/2013 indemnities for injuries, mutilations and deformities of a definitive and non-disabling nature.