Ever since the Polish Minister of Justice, Zbigniew Ziobro, announced at a press conference towards the end of July 2020 that Poland wished to withdraw from the agreement commonly known as the Istanbul Convention, debates over the legitimacy of the document signed in the Turkish metropolis in 2011 have again intensified. During the press conference, Ziobro justified the Polish government’s decision chiefly on the grounds of ideological bias, but in-depth analysis suggests that certain provisions within the convention may also raise more specific legal problems. In addition, it is important to emphasise that on an international level, the Istanbul Convention can be seen as a key element in a legal trend which goes far beyond the stated aim of providing legal protection for women who are the victims of violence, and aims to effect changes at the societal level by altering perceptions of gender and gender relations. In consequence, it is quite wrong to view steps taken towards this goal at an international level merely as legal protections for minorities, or even as measures supporting positive discrimination, which would in any case require a wider social debate to be considered legitimate.
Ziobro was, in essence, referring to this problem when he put it to the journalists in attendance that the Polish government has in recent years clearly demonstrated that the protection and support of women are priorities, and that Polish law already complies in full with all the professional standards prescribed by the convention.1
According to Ziobro, the Istanbul Convention is in fact an ideological instrument, which in certain aspects goes beyond the protection of women. These aspects are simply “unacceptable” as well as “detrimental”. Ziobro identified the convention’s definition of gender as a socio-cultural construct as its more problematic provision, since it replaces the concept of biological gender. A similarly delicate point is the convention’s stipulation that all children should receive sex education, including sections on homosexuality.
Poland is not, however, the first country to express grave reservations about the agreement. When Croatia ratified the convention in 2018, it included within the bill a legal reservation, stating that the Croatian state, while ratifying the bill, did not “consider itself bound” to introduce gender ideology into the country’s legal or education systems, nor to revise the constitutional definition of marriage. In an even more significant development, the Constitutional Court of Bulgaria ruled on 27 July 2018 that the Istanbul Convention was fundamentally incompatible with Bulgaria’s constitutional order, and therefore could not be integrated into the country’s legal system.2
The 12-member Bulgarian Constitutional Court ruled by a margin of eight to four that the convention was unconstitutional, and justified its decision with reference to two main areas. Firstly, the Istanbul Agreement itself contained serious internal contradictions, and in addition, certain provisions of the agreement stood in direct opposition to the provisions of the Bulgarian constitution. According to the court, the wording of the Istanbul Convention was inconsistent, with the stated aim being in principle the elimination of violence against “women”, but at the same time suborning the concepts of “man” and “woman” to a cultural definition of gender, so that it was not in fact clear on the basis of the convention who exactly was to be considered a woman. In its majority ruling, the constitutional court stated that this confused usage of terminology “not only does not promote gender equality, but even makes it impossible to distinguish between genders, thus rendering the very concept of gender equality irrelevant”. It is also interesting to note the opinion of the court, that “if a society were to lose its ability to differentiate between a man and a woman, the formal obligation to combat violence against women would become impossible to fulfil”.
Furthermore, according to the ruling of the Constitutional Court of Bulgaria, Section 3 (C) and Section 4 (3) of the Istanbul Convention define the concept of gender identity in a way which is incompatible with the binary definition of Bulgarian constitutional law.3
The court held that human societies have traditionally developed on the basis of binarism – that is, the division of people into two biologically distinct genders. Biological gender is determined by birth, and this forms the basis of civic (or “social”) gender. The conception of marriage as a union between a man and a woman, and the understanding of women as having a particularly close relationship with such social roles as “motherhood” and childbearing, were judged to be too deeply rooted in the legal framework of the Bulgarian state to allow for such a far-reaching reappraisal.
As the ruling of the Constitutional Court of Bulgaria indicated, it is difficult to obtain a clear picture of the true scope and objectives of the Istanbul Convention. The question of whether its main purpose is to provide women with legal safeguards, or rather to bring gender ideology into the mainstream, is at least open to debate. According to Radosveta Vassileva,4 a Bulgarian constitutional lawyer who supported the convention and criticised the decision of the Constitutional Court, this question is ultimately irrelevant, in that Article 21 of the Charter of Fundamental Rights of the European Union prohibits any discrimination on the basis of biological sex or sexual orientation. All member states of the EU including Bulgaria, are bound by the provisions of this charter. In reality, however, it is a question of great significance, given that gender mainstreaming has much more radical and fundamental goals than the objectives of either women’s rights campaigners or modern feminist movements. Indeed, sometimes the objectives of the former come into direct conflict with those of the latter groups. Gender mainstreaming defines itself formally as a preventative (!) approach to gender equality, but one which seeks not only to achieve equality for women, and indeed men, but also for so-called “non-binary” gender or sexual identities, and to restructure certain segments of social life. Women’s rights campaigns have, by contrast, traditionally sought to eliminate existing social, economic and political barriers and inequalities, to further the interests of women.
From a social philosophy perspective, the birth of gender studies is associated primarily with the work of Michel Foucault. Foucault perceived a strong reciprocal relationship between biology, changing social norms and systems of power in the postmodern era. Foucault reasoned that humanity’s success – however partial and contingent – in bringing the development of human life under its control, ensured that the threat of death likewise appeared less direct and imminent. Having laid this procedural groundwork, it then became possible for power and science to direct, control and modify how the processes of life express themselves. According to Foucault’s interpretation, it is science (specifically medical science) and the hierarchies of power which have defined the social significance of the female body, bounding it within the sphere of family life and the rearing of children, thus making of a woman’s body the “body of a mother”. Foucault spent a great deal of time examining the relationship between power and sexuality. “Where there is desire, the power relation is already present: an illusion, then, to denounce this relation for a repression exerted after the event; but vanity as well, to go questing after a desire that is beyond the reach of power.”5
The French philosopher saw sexuality, and thus concepts of “normal” or “natural” sexuality, as contingent historical constructs, in the establishment of which power structures had played a decisive role. However, it was likewise only through mechanisms of power and culture that these historical constructs could be overcome, since power and sexuality were ultimately inseparable. Thus, “liberation” from the moral norms of “natural” sexuality could only be achieved through the establishment of a new normative structure.
It is important to note that Foucault lived during the sexual revolution, when discourses surrounding sex, gender and sexuality began to take shape, and the first gay rights movements were launched. At this point, as a rejoinder to Foucault, it may be useful to quote the words of Chief Justice Warren E. Burger, who as a member of the US Supreme Court ruled in 1986 on the high-profile Bowers vs Hardwick case,6 and gave an opinion which can be easily placed in opposition to Foucault’s. He argued that “good governments” have always established rules to regulate sexual behaviour. In the specific case, a gay man was facing a prison sentence on charges of “sodomy”. Dissenting members of the court argued that citizens had the right to be “left alone”. Burger, however, though he did not energetically pursue criminal charges against homosexuals, nevertheless took a different view: he held that to strike off such prohibitions would be to undermine the values which upheld the structure of state legislation, and indeed of American society. “The proscriptions against sodomy have very ancient roots. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilisation. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. […] To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”7
Burger has been subjected to considerable criticism, not least from his personal friend and colleague, Chief Justice Harry Buckman, but his opinion does indicate that the effects of drastic legal liberalisation in terms of gender and sexuality go far beyond any constitutional guarantee of minority rights.
Over the subsequent decades – at the latest with the Supreme Court’s judgement on the 2003 case of Lawrence vs Texas – “anti-sodomy” legislation has become unconstitutional in the United States. This has not, however, marked an end to the process of radical change in perceptions of gender and sexual identities. This was shown just a few weeks ago, in the case of Bostock vs Clayton County, Georgia, in which the Supreme Court found in relation to a 1964 law that the word “sex” should be understood to include also sexual orientation and different sexual identities, so that the prohibition on discrimination must extend to discrimination on these grounds as well. This decision may open a door to even more profound forms of social change, which are already closely linked to concepts current in gender studies.
In place of an in-depth analysis of gender studies, we shall here limit ourselves to pointing out that gender mainstreaming has, through a series of steps which began in the 1990s, gradually become one of the main policy directives of the EU, usually with reference to the necessity of ensuring equality between men and women. Significant steps were already being taken in 1995, including the establishment of the Santer Commission, with a special working group to promote equal opportunities, and the establishment and adoption of the so-called “Fourth Action Programme on Equal Opportunities”. In February 1996, the Commission issued a formal declaration, committing itself to the promotion of gender equality in all the collective policies of the EU. The most significant steps were brought about through the drafting and ratification of the Treaty of Amsterdam, which – among other things – established that the term “protection of human rights and fundamental freedoms” in Articles 2 and 3 of the Treaty on European Union should be understood as covering equality and “equalisation” between men and women, and the fight against discrimination. While these provisions may not be invoked directly by EU citizens, they must nevertheless be taken into account by all EU decision-making mechanisms. The judgements of the Court of Justice of the European Union in the Marshall and Kalanke cases have also outlined the criteria according to which the European Union and its member states may introduce so-called “positive discrimination” such as gender preferences or even quotas.8
At the same time, however, the EU is still struggling to establish clear definitions of “sex” and “gender”, as can be seen in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR). While the EU is not a party to the European Convention of Human Rights, Article 6 of the Treaty on European Union states that the Convention is also part of EU law, so the case law of the ECHR does in practice establish precedents for the case law of the CJEU. In the case of Goodwin vs United Kingdom, for instance, the ECHR found that it was an infringement of human rights to forbid a person who had undergone gender reassignment from marrying someone of the same gender as the plaintiff had been before the operation. Following this judgement, the court sought to separate the concepts of man and woman from that of sex at birth. On this basis, a person’s gender thus becomes a contingent, alterable circumstance, which logically does not even require transformative surgery. What is more, according to the CJEU, legislation passed by a member state which limits the definition of gender to the sex assigned at birth, and provides no means of changing it, thereby infringes upon “the true essence of the right to marry”. The somewhat smile-inducing judgement which attempted to establish the social security situation of a person who had undergone gender reassignment surgery to change from a man to a woman, followed a similar logic. Specifically, the problem was determining whether the retirement age of 65 for men or 60 for women should apply in this case. The court eventually determined that the rules for women should apply. A comparable decision was taken by the CJEU in 2018, when it ruled that it was an infringement of the right to equality to differentiate between two married people in the provision of a state pension – one member of the couple had undergone gender reassignment surgery, while the other had retained their birth sex.9
In terms of gender equality, the EU is now the most “progressive” large political actor on the world stage. Certain independent researchers such as Mark A. Pollack and Emilie M. Hafner-Burton10 have found the EU to be “surprisingly fast and effective” in its implementation of gender policies. The Istanbul Convention, drafted under the auspices of the Council of Europe and ratified by the EU in 2017, is one part of this rapid process, and its ratification and implementation by member states has been listed in the 2020–2025 Action Plan as one of the bloc’s key objectives in the domain of equal opportunities.
As can be seen from the brief summary above, the Istanbul Convention should not be viewed in isolation. It forms part of a regulatory trend encompassing a number of Western states, particularly within the EU, where the mainstreaming of gender ideology is carried out through a mix of anti-discrimination activity, regulation, equal opportunities legislation and judicial interpretation of the law. If the Istanbul Convention were to be ratified by all EU member states, it would be elevated to a formal legal status which could make it a form of gender constitution. Thus, the enforcement of progressive gender ideology could be elevated within the EU to a legal principle of states or societal organisations. This, in turn, would present several serious dilemmas:
Firstly, the Istanbul Convention contains a number of points which, as was pointed out by the Polish Minister of Justice and the Constitutional Court of Bulgaria, go far beyond safeguarding the rights of women against violence, and aim to effect profound socio-cultural changes. Provisions such as Article 12 (1) and (5) of the Convention, which require member states to undertake to eradicate “prejudices, customs, traditions and all other practices” which are based on stereotypical male/female roles, represent an extremely drastic intervention. A convention stipulating a “progressive” socio-politico-cultural programme on this scale would normally require a much stronger democratic mandate than, for instance, a qualified majority at a referendum.
The vague definitions of domestic violence, as well as psychological and economic abuse, have also raised serious concerns. According to the wording of the Convention, this seems to apply not merely to violence between couples, but to mark also a serious infringement of the rights of parents to use physical correction in raising and disciplining their children, at least in instances when the parent is the father and the child is a daughter. It is also worth emphasising at this point that employing state criminal law to interfere in the private affairs of married couples or those in a relationship has also alarmed some, inasmuch as the institutions of marriage – and divorce – are both private and, in a moral sense, having been freely entered into, fundamentally a matter of personal responsibility.
The Istanbul Convention and its gender-mainstreaming programme are part of an effort to restructure social relations in order to achieve gender equality. In the oft-quoted words of former Danish Environment Minister Lone Dybkjær, in order for women’s rights to be foregrounded from the outset, it is necessary “to reconstruct the entire building”.11 However, as Foucault indicated, this will essentially entail the demolition of old norms, and the establishment of a new set of norms, or as Ursula Schele and Katharina Wulf put it, “a feminist state”.12
Translation by Thomas Sneddon
2 The decision of the Constitutional Court of Bulgaria: http://www.constcourt.bg/bg/Acts/GetHtmlContent/f278a156-9d25-412d-a064-6ffd6f997310.
4 Radosveta Vassileva: “Bulgaria’s Constitutional Troubles with the Istanbul Convention”. 2 August 2018. In: Verfassungsblog on Matters Constitutional. https://verfassungsblog.de/bulgarias-%20constitutional-troubles-with-the-istanbul-convention/.
5 Michel Foucault: The History of Sexuality. Volume I: An Introduction. Pantheon Books, New York, 1976, pp. 81–82. See also pp. 9 and 106.
6 Bowers vs Hardwick, 478 US 186 (1986) https://supreme.justia.com/cases/federal/us/478/186/.
7 Jason Koslowe: “The Problem of Derivation: Lawrence vs Texas and the Abuse of Social Facts”, p. 5: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1810954.
8 Ann Donahue: “The Kalanke Ruling: Gender Equality in the European Labor Market”. In: North-western Journal of International Law and Business. Spring 1998. From p. 753.
9 For more, see: “European Court of Human Rights: Gender identity issues. From the Rees case to the Christine Goodwin case. Factsheet”. April 2017. https://www.avrupa.info.tr/sites/default/%20files/2017-05/ECtHR%20Factsheet%20Gender%20Identity.pdf.
10 Emilie M. Hafner-Burton, Mark A. Pollack: “Mainstreaming Gender in the European Union”. In: Journal of European Public Policy. February 2011, p. 450.
11 Gabriele Abels, Joyce Marie Mushaben: Gendering the European Union. Hampshire, Palgrave Macmillan, 2012, p. 1.
12 “Our State Has Become a Feminist”. Ursula Schele, Katharina Wulf: “Unser Staat ist Feminist geworden”. In: Interdisziplinäre Fachzeitschrift. First edition, 2019, p. 87.