Substantive equality, not flowers
In 1910, at the request of Clara Zetkin and Käte Duncker, the Second Socialist Women’s Conference in Copenhagen decided to hold an International Women’s Day every year, “which primarily serves to agitate for women’s suffrage”. At the instigation of communist women, the date was set for March 8 to commemorate the brave striking women who had triggered the Russian February Revolution in St. Petersburg in 1917. In 1918, the Weimar Republic finally brought universal suffrage for women. The political demands on International Women’s Day therefore shifted to better working conditions for women, equal pay for equal work, equality in partnerships and families, and the fight against § 218 of the German Criminal Code (criminalizing abortion since the imperial era). The National Socialists banned International Women’s Day and elevated Mother’s Day, supported by florists, to the “Day of Remembrance and Honour of German Mothers”. German society is still recovering from this today.
There is no doubt that equality between men and women has made significant progress in many countries around the world since 1910, especially in democracies. So why should International Women’s Day still be celebrated after 114 years, and why in Germany? It is true that universal suffrage for women in European democracies is now undisputed. However, parity in the representation of women in parliaments, high and highest government offices or top positions in the judiciary and business is far from being achieved in Germany. Just a few days ago, Dr. Christine Fuchsloch was appointed President of the Federal Social Court – as the first woman in the Court’s seventy-year history. In 2024, the demand for “women in red robes” is still astonishingly topical and necessary.
Today, women are fighting against gender care gap, gender pay gap (by the way, the “clean-up” is itself complicated and suffers from gender bias ), digital gender gap, gender data bias, gender lifetime earnings gap, gender pension gap – gaps as far as the eye can see. And that’s one reason why International Women’s Day continues to be important.
In addition, there are those struggles that were already current in 1910 and still are. An overview of the current struggles is provided by the well-founded statements of the German Association of Women Lawyers (djb), which, as a non-partisan association, has persistently brought feminist demands into legal policy discussions for 75 years. I highlight three current issues: reproductive autonomy, physical integrity and equality in working life.
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Reproductive autonomy
The fight for reproductive autonomy and the decriminalization of abortion is a long-running feminist issue. “Away with § 218 StGB!” has been a demand of the feminists of the imperial era since 1871. It was not to be expected that we in Germany would still be dealing with this criminal law norm over 150 years later. In the USA, the dystopian novel “The Handmaid’s Tale” by Margaret Atwood (where a theocratic male dictatorship forces women to reproduce) may soon turn into reality. “Reproductive autonomy” is a worldwide (constitutional law) issue. The enshrinement of the right to abortion in the French constitution gives cause for hope. This would not have been possible without the courageous fighter Simone Veil who first politically enacted this right in 1974 with the “Loi Veil”. What conclusions will the Federal Government’s Commission reach that is currently examining how abortion could be regulated outside of the Criminal Code? In 1993, a Second Senate of the Federal Constitutional Court, composed of only one woman and seven men, had derived all kinds of requirements from the German constitution’s sparse words, including the professional qualification of counsellors (para. 237 et seq.). Will there finally be an end to the blatant paternalism of women in Germany through compulsory counselling that treats them as immature persons? Read by a woman in 2024, the Second Abortion Decision is extraordinarily infuriating, and it is outrageous that this paternalistic, sexist and patronizing concept should still apply today. And that’s one reason why International Women’s Day continues to be important.
Femicides and sexualised violence
Every day in Europe, between 6 and 7 women are killed by their partner or ex-partner, in Germany almost one every third day (femicides). Every year, around 1.5 million women are raped in the EU. If you want to read a literary and truly gripping description of typical violent crimes in intimate relationships, I recommend the books by Christina Clemm, “Akteneinsicht” (2020) and “Gegen Frauenhass” (2023). Nevertheless, Federal Minister of Justice Buschmann recently blocked a uniform European definition of the offence of rape in the EU Directive on Protection against Gender-Based Violence, because consent is to be made a condition of sexual intercourse. This is the difference between the principle of “no means no” (that is against a person’s discernible will), which has been in force in Germany since 2016 and the principle of “yes means yes” (that is with voluntary consent), which preserves autonomy. A convincing reason for blocking the directive is not apparent. As recently as 2010, a former Berlin prosecutor general said that if he had a daughter, he would advise her not to report rape. Women remain largely unprotected, and myths about rape continue to prevail in the criminal justice system (especially victim blaming such as “she did not defend herself”, “she was imprudent”, “her dress was provocative”). Sexualised violence must be prosecuted effectively, femicide must be prevented. And that’s one reason why International Women’s Day continues to be important.
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Der Lehrstuhl Kritik des Rechts (Prof. Dr. Felix Hanschmann, Bucerius Law School) und das Fachgebiet Just Transitions (Prof. Dr. Andreas Fischer-Lescano, Universität Kassel) laden zu der Fachtagung “Kritik und Reform des Jurastudiums” am 8. und 9. April in Hamburg ein. Gemeinsam wollen wir ausloten, wie die juristische Ausbildung an die gesellschaftlichen und studentischen Erfordernisse herangeführt werden kann.
Details zum Programm und zur Anmeldung finden Sie hier – wir freuen uns auf zahlreiche Anmeldungen, spannende Diskussionen und neue Impulse!
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Equal Pay
The gender pay gap has already been mentioned. Delegate Helene Weber (CDU), one of only four women among the 77 members of the Constituent Assembly, had already called for equal pay to be regulated in the Parlamentarischer Rat(Parliamentary Council): “Men and women are equal in the choice and exercise of their profession, if they perform the same work, they are entitled to equal pay.” It was then proclaimed by the male members that this principle was already contained in the general formulation that ‘women and men have equal rights’. The Parliamentary Council thus considered the principle of “equal pay for equal work” to be a constitutional requirement. Against this background, it is astonishing how little the law has done to guarantee equal pay. The 2017 “Act for the Promotion of Pay Transparency between Women and Men” has remained a toothless paper tiger. More hope rests on the EU Pay Transparency Directive, which Germany must now implement. Here, it is important to keep the pressure high in order to achieve real changes and, 75 years after the entry into force of the Basic Law, to bring us closer to the state of affairs that the members of the Parliamentary Council already took for granted. And that’s one reason why International Women’s Day continues to be important.
Substantive enforcement of equality!
The substantive fulfilment of formally granted equality is by no means a foregone conclusion, but still has to be laboriously fought for in individual issues and in individual cases. It is not uncommon that we need to defend against attacks what has been already achieved. Regression is a possibility and is politically sought by some who generally strive for a relapse into brown times. The combination of right-wing extremist sentiments and misogyny is classic. The colourful demonstrations of the last few weeks are therefore an encouraging sign for women and for democracy in general. This form of solidarity is essential in a democracy. When individuals are discriminated against and marginalized, democracy contradicts its own promise of equality. This promise is not just on paper, but has a substantive dimension.
From a historical perspective, social and legal struggles against discrimination proceed in three phases: rights are denied, rights are granted, and truly equal rights still have to be enforced. In 1948/49, Elisabeth Selbert fought for Article 3.2 of the Basic Law in the Parliamentary Council: “Men and women have equal rights.” After reunification in 1993, unrelenting women added a second sentence: “The state promotes the substantive implementation of equal rights for women and men and works towards the elimination of existing disadvantages.” Since then, our constitution has emphasized that the issue of equal rights for women is not mere constitutional poetry. In this democracy, we are serious about equality between men and women! To remind ourselves of this constitutional imperative, we celebrate International Women’s Day once a year – as in Berlin, it should be a bank holiday so that we have time to demonstrate! And we stand in solidarity with the women all over the world who are still fighting for equality! Unfortunately, these struggles are far from over in 2024. And that’s one reason why International Women’s Day continues to be important.
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The Week on Verfassungsblog
Monday was a historic day. The US Supreme Court – unanimously – confirmed Donald Trump as the nominee in November’s presidential election. Disqualifying a candidate who is steadily leading most polls would undoubtedly have been complex, questionable, and historically quite unprecedented. Equally historically unique, however, are the dangers Trump poses to American democracy and the existing world order (or what is left of it). MARK GRABER analyzed this comprehensively.
How can we prevent the Thuringian Constitutional Court from becoming inquorate? One suggestion is that the court could recruit its own staff if the election of new constitutional court judges is permanently blocked. WERNER REUTTER explores the idea in various scenarios.
Speaking of scenarios: If the far-right AfD had a majority in the Thuringian parliament, it could take advantage of the rules on parliamentary immunity and use them against political opponents. THOMAS BRITZ and BIJAN MOINI deem the regulations to be outdated and suggest a reform.
JULIAN SEIDL examines the payment cards that asylum seekers in Germany are supposed to prospectively receive instead of cash. He considers the fundamental right to a subsistence minimum which is in line with human dignity threatened for some of the mapped out models fall short of the requirements set by the Federal Constitutional Court.
Minister of Defence, Boris Pistorius, wants to bring back military conscription – following the Swedish model, this would include women. KATHRIN GROH’s fundamental rights analysis: such a model would be feasible in principle, but only with some constitutional amendments.
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Der Fachinformationsdienst für internationale und interdisziplinäre Rechtsforschung hat den Virtuellen Lesesaal seiner Virtuellen Fachbibliothek um weitere e-Ressourcen aufgestockt – diese sind für die Rechtswissenschaft an Universitäten, Hochschulen und Forschungseinrichtungen in Deutschland kostenfrei und überregional zugänglich –, u. a. um
- Cambridge University Press / Law e-Book Collection
- Dalloz.fr (schon vorher verfügbar), jetzt inkl. e-Books
- Duncker & Humblot / Schriftenreihe “Strafrecht und Kriminologie (SK)”
- Lexis360.fr (in Kürze verfügbar)
- Max Planck Encyclopedia of Public International Law – MPEPIL
- Oxford Reports on International Law – ORIL
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A reform to reduce the burden on the ECJ and increase transparency – should, in light of the growing importance of EU law and an increasing number of proceedings, be welcomed. KATIA HAMANN examines the envisaged changes and analyzes their potential to reduce the ECJ’s caseload.
The path is clear for a two per cent threshold in European elections – at least on the part of the German Federal Constitutional Court. In their review of the decision, JONAS GRUNDMANN and JOHANNA MITTROP explain that the court recognized the ‘order of the day’ and moved away from its old perception of the European Parliament.
The news from Gaza stir a debate on the legality of European arms exports to Israel (and elsewhere). Recently, a Dutch court banned the export of spare parts for F-35 fighter jets to Israel. GALINA CORNELISSE sheds light on the background in international law.
KARIN DE VRIES highlights how the ECtHR stepped up the fight against racial profiling in the recent case Wa Baile c. Suisse. The Court reversed the burden of proof and accepted that both the lack of an adequate preventive framework and reports by international human rights bodies and NGOs contribute to establishing a presumption of discrimination.
After the first hundred days of the new administration in Slovakia, PETER ČUROS analyzes paradigmatic change in the penal codes, an attack on civil society organizations, the abolishment of the Special Prosecutor’s Office, a bill for a limitation of whistleblower protection, and politicization of independent institutions. He argues that we ought to expect a radical shift in Slovakia’s democratic character and its position in international relations.
In light of international standards on judicial independence, CLARISSE IKEDA LARCHER analyzes the centerpiece of the assault on the Tunisian judiciary by President Kais Saied, namely presidential decree 2022-35. She shows how the situation unfolding in Tunisia serves as a stark example of blatant executive overreach into the realm of the judiciary.
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In einer Kooperationsveranstaltung mit der GEW Thüringen gehen wir Szenarien und Strategien für den autoritär-populistischen Ernstfall in Schulen auf den Grund. In dem Workshop werden die Ergebnisse der Recherche des Thüringen-Projekts präsentiert und gemeinsam mit der Seminargruppe Möglichkeiten erarbeitet, Schulen und Lehrkräfte für politische Vereinnahmungsstrategien zu sensibilisieren und Resilienz aufzubauen. Hier geht es zur Anmeldung für die Termine im Mai und Juni 2024.
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Just in time for “International Women’s Day”, we are happy to publish another article in the series “Outstanding Women of International, European and Constitutional Law” by a student of the University of Hamburg. FRANZISKA BACHMANN introduces Hélène Cazes Benatar, an outstanding lawyer even from today’s perspective.
GIACOMO MENEGUS looks at the increasingly repressive measures taken by Italian authorities in response to climate protests in Italy. The article is part of the symposium “Kleben und Haften: Ziviler Ungehorsam in der Klimakrise”.
For the symposium “Rethinking the Law and Politics of Migration“, DANA SCHMALZ writes about the role of numbers in the migration debate. ANUSCHEH FARAHAT concludes the symposium by encouraging us to consider migration law and human rights as a lens and a tool through which the European political community and the normative project it stands for can be strengthened.
We also had an addendum to our recent Platform Regulation Symposium. NATALI HELBERGER and PAMELA SAMUELSON analyzed the extent to which the Digital Services Act constitutes a global transparency regime.
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That’s all for this week. Take care and all the best,
the Verfassungsblog Editorial Team