Subversion from within

Autor(en)

Elisabeth Holzleithner

Abstrakt

The European Court of Justice (ECJ; since 2007, the Court of Justice of the European Union – CJEU) has dealt with an impressive number of cases concerning gender equality. Its track record, however, is quite checkered. Some cases count as unquestionable milestones, such as Gabrielle Defrenne v Sabena, where the Court held that the principle of equal pay is indeed binding law and not just a noncommittal maxim, and P v S and Cornwall County Council, which extended the notion of gender well beyond the binary of man and woman. Other cases, by contrast, are regressive and laden with stereotypes, such as Ulrich Hofmann v Barmer Ersatzkasse, with its conventional ideology of motherhood, or Eckhard Kalanke v Freie Hansestadt Bremen, which set a rather narrow precedent in the Court’s approach to quota regulations.

This chapter focuses on cases with a restrictive approach to gender equality such as these last two in order to find out how a legal commitment to gender equality can be subverted over the course of applying that law. How have submissions before the Court produced interpretative strategies opposed to enhancing gender equality? This chapter will review the bulk of relevant gender-equality case law and systematize the respective arguments, which were often introduced by governments from EU member states, showing what kinds of arguments have been more successful and which less so. Based on this diagnosis, the most effective arguments in opposition to gender equality will be filtered out.

Before diving into the issues, this chapter will highlight the general emancipatory potential of law and thus introduce a legal-philosophical perspective. It will then proceed to examine diverse levels of legal discourse with a focus on European Union gender-equality law and the role of the ECJ/CJEU. This will provide a suitable background for the specific topic of this chapter, namely the role of oppositional arguments countering a wide reach of gender-equality law before the ECJ/CJEU.

Organisation(en)

Institut für Rechtsphilosophie, Forschungszentrum Religion and Transformation

Externe Organisation(en)

Forschungsverbund "Geschlecht und Handlungsmacht - Gender and Agency"

Seiten

135-153

Anzahl der Seiten

19

Publikationsdatum

05-2018

ÖFOS 2012

603117 Rechtsphilosophie, 505033 Antidiskriminierungsrecht, 505006 Grundrechte, 504014 Gender Studies

Sustainable Development Goals

SDG 5 – Geschlechtergleichheit

Link zum Portal

https://ucrisportal.univie.ac.at/de/publications/5633077d-be8c-4622-ba8f-cb8a268f9dae