Biography
Barbara Havelková holds degrees from Charles University in Prague (Mgr - Master in Law; summa cum laude), Europa-Institut of Saarland University (LLM) and the University of Oxford (Mst in Legal Research, DPhil).
Barbara is an Associate Professor at the Faculty of Law and a Tutorial Fellow at St Hilda's College. She was previously the Shaw Foundation Fellow at Lincoln College and held other posts at the University of Cambridge (Emmanuel College) and Oxford (Balliol). She worked for Clifford Chance Prague, trained at the Legal Service of the European Commission and in the Chambers of AG Poiares Maduro at the Court of Justice of the European Union. She was an academic visitor at several law schools, including Harvard University and University of Michigan as a Fulbright scholar and the Jean Monnet Center of NYU Law School as an Emile Noël Fellow.
Barbara’s research and teaching interests include gender legal studies and feminist jurisprudence, equality and anti-discrimination law, constitutional law, EU law and law in post-socialist transitions. She is a senior member of the Law Faculty's Feminist Jurisprudence Discussion Group. Barbara teaches Constitutional Law, EU Law and Feminist Jurisprudence to undergraduates and Comparative Equality Law on the BCL/MJur programme.
Her book, 'Gender Equality in Law: Uncovering the Legacies of Czech State Socialism', was published by Hart/Bloomsbury in 2017 and received an honourable mention from the judges of the BASEES Women’s Forum Prize for 2019. A volume Barbara co-edited with Mathias Möschel on ‘Anti-Discrimination Law in Civil Law Jurisdictions’ came our with Oxford University Press in 2019.
Barbara has also been active as an expert and an academic in the Czech Republic. Between 2014 and 2017, Barbara acted as an Advisor to the Prime Minister of the Czech Republic on issues of gender and law. She is the author of a monograph ‘Equality of women and men in remuneration’ (Rovnost v odměňování žen a mužů; Auditorium, 2007), co-author of the leading 'Commentary on the Czech Anti-Discrimination Act' (Antidiskriminační zákon. Komentář, with P Boučková et al; C.H.Beck, 1st edition 2010, 2nd edition 2016) and co-editor and co-author of the edited volume What to do with prostitution? Public policies and the rights of persons in prostitution (Co s prostitucí? Veřejné politiky a práva osob v prostituci, with B Hančilová; SLON, 2014). A collection of essays on gender and the law, 'Men’s Laws: Are Legal Rules Neutral?' (Mužské právo. Jsou právní pravidla neutrální?), which Barbara co-edited and co-authored, came out in 2020 with WoltersKluwer.
Publications
Recent additions
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B Havelkova, 'Sex' in C O’Cinneide, J Ringelheim and I Solanke (eds), Research Handbook on European Anti-Discrimination Law (Edward Elgar 2021) (forthcoming) -
B Havelkova, M Urbániková and D Kosař, 'The Family Friendliness That Wasn’t - Access but not Progress for Women in the Czech Judiciary' (2021) Law and Social Inquiry (forthcoming) -
K Šimáčková, B Havelkova and P Špondrová (eds), Mužské právo. Jsou právní pravidla neutrální? (Men's Laws. Are Legal Rules Neutral?) (Wolters Kluwer 2020) ISBN: 978-80-7598-761-7
Chapter (12)
ISBN: 978-1-949884-39-5
The Introduction draws together the chapters’ findings in relation to the two research questions which have animated the project. The first question asked how anti-discrimination law fares in civil law jurisdictions of Europe and how it fits into them. The Introduction notes that while anti-discrimination law is still seen as a foreign transplant and a legal irritant in many places, it does not uniformly fare poorly. Its success varies and appears to depend not only on the country, but also the area of law, the actors involved, a particular concept or ground of discrimination, and has often evolved over time. The second question asked what factors influence anti-discrimination law’s fit or lack of it. ‘Legal’ as well as ‘extra-legal’ aspects seem to favour or hinder anti-discrimination law, but as they are often not always clearly separable and distinguishable, we locate four types of factors on a spectrum. On the legal side, pre-existing legislation and case law have played a role as have institutional choices. Constitutional and legal foundations and narratives, such as the myth of ‘universalism’ in France, have also influenced the success of anti-discrimination law. Finally, the wider political and social context is discussed, noting that the individual, liberty-oriented politics of common law countries, with their greater reflection of issues of cultural recognition, might be more easily compatible with anti-discrimination law, while the more communitarian, collective approach of continental European countries, with their emphasis on dignity and social-welfare solutions to social problems, might be less so.
The chapter shows that the general principle of equality is the pre-eminent doctrine in Czechia. It is more often and more readily applied than ground-related anti-discrimination law by courts and administrative bodies alike, and the two doctrines are often conflated. This is paradoxical, because ground-related anti-discrimination law is distinctive and arguably addresses a graver wrong: while the general principle of equality targets random arbitrariness, irrationality or unfairness, the prohibition of discrimination on specific grounds focuses on oft-repeated, systematic behaviour and practices which track deep historical and/or current disadvantages.
The paper identifies, classifies and analyses sceptical statements from defendant governments, individual judges or Chambers at the ECtHR, both regarding the social reality of inequality as well as the legal doctrine of indirect discrimination, and the responses to them by the Grand Chamber of the Court. The aim of the chapter is not merely to present a doctrinal assessment of the case law, but to offer a socio-legal reading of governmental and judicial statements about inequality and discrimination.
The paper shows how despite the apparent non-regulation and non-criminalisation of prostitution in the Czech Republic, the legal framework and its implementation have been tightening around people in prostitution, and have been especially repressive against the visible supply. The municipal ordinances have enabled harassment and exclusion of people in prostitution out of public spaces. Compliance with this framework has compromised the safety and security of people in prostitution, while non-compliance is either directly or indirectly punishable by criminal law. The proposals for a new Act on the Regulation of Prostitution, repeatedly submitted to Parliament by the City of Prague, although sometimes presented as 'legalising', are regulationist - resembling the highly controlling regime that existed in the Czech lands in the 19th century.
Much has been written about gender in Czechoslovak state-socialist society, culture and policies, but relatively little on gender in law. The chapter offers one such analysis it looks at how gender was regulated in law and understood and constructed by the legal community. It examines legislation, judgments, explanatory memoranda to bills, and academic legal scholarship. For reasons of space, only what was identified as comprising the woman question by the state is assessed; namely, family (understood exclusively heteronormatively) and paid work. This results in two limitations. First, the official silence surrounding issues ignored by state policy, such as gender-based violence or LGBT rights, is not remedied in this chapter. Second, beyond areas obviously affecting women or gender relations, law is androcentric and many seemingly neutral legal institutions, such as for example self-defence in criminal law or the law of property, contain a strong male or patriarchal bias. An analysis of how this bias changed in a classless society would be an interesting and important endeavour, but it goes beyond the scope of this chapter.
The chapter offers a diachronic analysis of state-socialist Czechoslovakia, and argues that the period of state socialism (1948-1989) was not homogeneous, but that the original equalizing zeal of the Stalinist period of the 1950s started to be challenged during the political thaw of the 1960s and became hollowed during the normalization of the 1970s and 1980s. There have been three different stages of gender equality: 1) Equalization (19481962); 2) Reflection (19631968); and 3) The era of the family (19691989). The existing social science literature usually discerns two periods: 1) an emancipatory, equalizing, revolutionary and activist stage of the late 1940s and 1950s; and 2) a family-oriented, conservative and stability-centred one in the 1970s and 1980s. I argue that, based on my analysis of the legal developments and legal policy debate, the period of political thaw in the 1960s needs to be assessed separately. The emergent pluralism of this time brought challenges from women (organized and individual) of the official narratives of equality achieved but it also brought challenges from experts to the concept and policy of equality of the sexes and opened debates about the policys economic (in)efficiency. The period of 1960s must thus be assessed more critically from the gender perspective than it so far has been from the point of view of general political history.
My observations of a regression in the modernization of womens status and equality during the state-socialist period, as well as the problematic pluralism of the 1960s, both allow for a more nuanced analysis of the continuities and discontinuities between state socialism and post-1989 transition. The legal framework inherited in transition came from the so-called normalization (1969-1989) it actively supported and entrenched difference between the sexes, especially in the family. A woman was no longer the worker and active citizen of the 1950s, she was the wife who cared for her marriage and the mother who cared for her family. When claiming, in the 1990s, that gender equality needed no further attention as it had been addressed and achieved under state socialism, Czechs did not realize that what was in fact inherited was pro-family and pro-motherhood, but not necessarily pro-gender-equality policies. At the same time, what became the scarecrow in the 1990s was the earlier model of equality, exemplified by a female tractor driver of the 1950s. The transition-period rhetoric against state feminism and forcible equality of the sexes thus distanced itself from policies that had not been current for about three decades. The 1960s also played a particular role in transition. The period of political thawing and pluralism prepared the ground for the liberalism of transition. The challenges to the efficiency of womens work, full equality and collective childcare as well as the narrative of freedom and choice which became prominent in transition, were in some cases a reoccurrence, in some cases a continuation, of the debates which led to the Prague Spring of 1968.
ISBN: 978-0-415-72083-0
This article analyses the transposition of EC equality law and the application of equality norms by the courts in the Czech Republic. It identifies several challenges to effective implementation of equality policy. It submits, first, that the Czech legislatures actual goal is not the achievement of equality but the fulfilment of EU membership obligations. It argues that this attitude has resulted in the failure to
adopt a comprehensive anti-discrimination law and also has a negative impact on the quality of the legislation and its effectiveness. Second, it identifies serious deficiencies in the courts judgments and considers these to result from Czech judges adherence to legal formalism. As a consequence, the courts mechanically apply the wording of the legal norms while completely disregarding the legislative aims and the realities of gender discrimination.
Journal Article (10)
DOI: https://doi.org/10.1093/icon/moaa048
This paper argues that some of the difficulties faced by gender equality in postsocialist Central and Eastern Europe (CEE) can be explained by a missing paradigmatic shift to a constructivist understanding of gender. Arguably the most explicit rejection of a constructivist gender perspective was recently served by the Bulgarian Constitutional Court’s judgment, closely analyzed in the paper, which found certain provisions of the Council of Europe Convention on preventing and combating violence against women and domestic violence (Istanbul Convention) incompatible with the Bulgarian Constitution. A constructivist analysis of gender-based violence is capable of offering a range of important contextual insights into gender-based violence, whereas those who only have biology in their analytical arsenal are more limited (for example, sexual predation is thus either an “innate” male sexual drive or a psychologically certifiable deviance). The Bulgarian Constitutional Court, as the paper shows, does not even get as far as debating the insights gender analysis offers, but rather rejects them wholesale merely because the term “gender” is used. While a constructivist, critical (feminist) understanding of gender is under attack globally, this paper shows that the assault is particularly grave in at least certain postsocialist CEE countries, where it is not a mere backlash against a reasonably well-established viewpoint, but a fierce ex ante rejection of a concept not yet understood or debated.
This article explores the justifications for, and objections to, the proposed European Union ‘women on company boards’ Directive. It notes that Member State opposition to the measure had different emphases. The new, post-socialist Member States that intervened prominently questioned the Commission’s understanding of the underlying social reality of gender inequality and the measure’s focus on results, while the old Member States that intervened raised mainly the issue of subsidiarity and challenged the need for legislative action, and/or particularly the need for legislative action at EU level. The article further argues that the Commission weakened its case by emphasising economic rationales for the measure, and submits that a principled justification fits the proposal better. Finally, the article argues that subsidiarity-related arguments are available also to justify non-cross-border, non-economic projects, such as that of gender equality.
DOI: doi:10.1093/ojls/gqv022
The article explores how Czechoslovakia reacted to the persistence of prostitution during State Socialism (1948–89) when its underlying Marxist–Leninist ideology predicted that it should disappear with the overthrow of capitalism. The paper adopts a law in context approach, critically analysing legal instruments as well as expert commentaries by social scientists, legal scholars, judges and prosecutors from the period. It argues that while the Czechoslovak state attempted to suppress prostitution through criminal law, conceptualising it as ‘parasitism’, many of the State Socialist experts ultimately fell back on the extra-legal normative system of gender. Women in prostitution were condemned for their sexually promiscuous behaviour while all women were blamed for failing in their gender roles as good women, wives and mothers. Whereas the official policy was thus enforcing socialist morality, the experts reverted to traditional bourgeois morality, in clear betrayal of the promises of both Marxism–Leninism and the State Socialist ideology as regards the equality of the sexes. The heightened responsibility all women were given to prevent prostitution was unique. State Socialist Czechoslovakia is thus more than yet another case study of a repressive regime that controls and punishes the more vulnerable side of the prostitution transaction and apportions blame in a gendered way. Instead, it demonstrates how prostitution can become a vehicle for promoting and upholding traditional gender norms not only towards women in prostitution, but all women in society.
Post-communist Central and Eastern European ('CEE') legislators and judges have been resistant to equality and anti-discrimination law. This Article argues that these negative attitudes can be explained in part by the specific trajectory that equality and anti-discrimination law has taken in CEE during and after state socialism, which has differed from Western Europe. In the UK/EU, the formal guarantees of equal treatment and prohibitions of discrimination of the 1960s and 1970s were complemented by a more substantive understanding of equality in the 1990s and 2000s. This development was reversed in CEE—substantive equality, of a certain kind, preceded rather than followed formal equality and anti-discrimination guarantees. The State Socialist concern with equality was real, and yet the project was incomplete in several significant ways. It saw only socioeconomic , but not socio-cultural inequalities (relating to dignity, identity or diversity). It was transformative with regards to class, but not other discrimination grounds, especially not gender. While equality was a constitutionally enshrined principle, there was an absence of any corresponding enforceable anti-discrimination right. Finally, the emphasis on the "natural" differences between the sexes meant that sex/gender discrimination was not recognized as conflicting with women’s constitutional equality guarantees. Today, the lack of anti-discrimination legal guarantees has been remedied. However, equality and anti-discrimination law has been weakened by the fact that anti-discrimination rights have no indigenous history to draw upon, nor has substantive and transformative equality any fertile domestic conceptual ground within which to grow in relation to any protected characteristics other than class or socio-economic status.
Most feminist literature is divided on how to approach prostitution (some writers see it as sex work that should be normalized, some as inherently violent and exploitative practice that should be abolished). Connected to these positions, many normative debates about the response to prostitution concentrate on a legislative overhaul of current systems and either propose legalization (the Dutch model) or the criminalization of demand (the Swedish model).
Based on the finding that many national responses to prostitution fall in between the two models and the recognition that not all jurisdictions might chose a legislative overhaul in either the Dutch or the Swedish direction, this article tries to construct a framework for gender equality analysis that could be used to improve the position of prostitutes in (existing or proposed) regulatory regimes in which the well-being of prostitutes has not been an important legislative aim.
The article submits that the treatment of clients and prostitutes needs to be compared, as they are parties to the same transaction, and that any regime in which the treatment is asymmetric to the detriment of the prostitute is indirectly discriminatory (has a disparate impact) on the basis of sex. It presents three aspects of prostitution relevant for a gender equality analysis: 1) the social meaning of prostitution, 2) the risk of harm to the prostitute, and 3) the de facto inequalities between the client and the prostitute. It argues that these need to be weighed against any justification for asymmetric treatment benefiting the client and that they are also in their own right justifications for symmetric treatment of client and prostitute and even for an asymmetric treatment benefiting the prostitute.
In order to put this argument into context, the article presents a typology of regulatory regimes (based on EU member states and common law jurisdictions) and offers a synthesis of the feminist positions on prostitution (sex-work and sexual-domination).
DOI: 10.1016/j.wsif.2009.11.009
This article looks at the legal notion of gender equality in the Czech Republic as EU harmonization obligations meet with the socialist past. While the transition from state socialism to capitalism brought positive legal reforms many incurred in the EU accession process some of these new mechanisms, especially anti-discrimination and gender equality provisions, are mistrusted and misunderstood by legal actors. The article submits that the current notion of equality is influenced by the socialist past, and that both a continuity of conceptions between past and present about gender and equality, and attempts to distance the new capitalist order from its socialist predecessor impact it.
The delivery of substantive sex equality guarantees in the European Union and the United States is substantially affected by the division of powers (competences in European terminology) between the constituent units and the center. This Commentary compares the technical similarities and differences between the structures of competence of the federal systems of the United States and the European Union. This Commentary also briefly sketches their impact on substantive sex equality law.
Der vorliegende Beitrag beschäftigt sich mit zwei Fragen im Hinblick auf die Prüfung, ob eine Ungleichbehandlung aufgrund des Geschlechts eine Diskriminierung darstellt. Erstens, welche Rolle spielt in der Rechtsprechung des EuGH das Prinzip der Verhältnismäßigkeit und zweitens, welche Rolle sollte es spielen?
Nach einer Darstellung des Prinzips der Verhältnismäßigkeit und des EG-Gleichheitsrechts wird die Anwendung der Verhältnismäßigkeitsprinzips durch den EuGH anhand von ungefähr 70 repräsentativen Urteilen aus dem Bereich der Geschlechtergleichheit analysiert. Diese Forschung muss sich aus Platzgründen in zweierlei Hinsicht beschränken: Überprüft wird nur der Bereich der Gleichbehandlung in Arbeits- und Beschäftigungsfragen einschließlich des gleichen Entgelts. Zudem wird auf die Darstellung der Schlussanträge der Generalanwälte verzichtet. Zunächst wird die Rechtsprechung zu den geschriebenen Ausnahmen vom Grundsatz der Gleichbehandlung und danach die Rechtsprechung zu den ungeschriebenen Rechtfertigungsgründen durch ein legitimes Ziel geprüft. Im Rahmen dieser Analyse wird insbesondere auf die dogmatische Struktur und Prüfungsdichte
geachtet sowie geklärt, ob die Prüfungskompetenz beim EuGH oder dem nationalen Gericht liegt. Die Untersuchung wird sich nicht darauf beschränken, was der Gerichtshof sagt, sondern wird ermitteln, was er macht. Dabei wird analysiert, ob Muster hinsichtlich der Rechtsgrundlage der Entlastung der
Ungleichbehandlung, der Art der Rechtfertigung, des Gesetzesübertreters oder des Verfahrens vor dem EuGH bestehen.
Considers the implementation of EC equality law, including Council Directive 2000/43, in the Czech Republic and Slovakia. Discusses: (1) the Slovak Constitutional Court decision in Government of Slovakia v Parliament of Slovakia on whether s.8(8) of Act 365/2004 on Anti-Discrimination, which purported to transpose Council Directive 2000/43 Art.5 on positive action, conformed to the Constitution of Slovakia; and (2) the Czech Constitutional Court decision on whether the Civil Code of Procedure s.133a(2), which purported to transpose Council Directive 2000/43 Art.8 on the burden of proof, was consistent with the Constitution of the Czech Republic.
Comments on the distinguishing features and different outcomes in each case.
Edited Book (2)
ISBN: 978-80-7598-761-7
Since anti-discrimination law and scholarship on it developed mainly in common law countries, the book breaks new ground by offering a sustained, critical, legal and socio-legal, comparative look at anti-discrimination in civil law jurisdictions of continental Europe. While anti-discrimination law is largely seen as a foreign transplant in these countries, it does not fare poorly across the board. As shown by the case studies in the book, the success of anti-discrimination law varies by country, time, ground, concept and area of law. The findings also suggest anti-discrimination law's success or fit in each jurisdiction is tied to various factors, from pre-existing law, to institutional choices and mobilization, to constitutional and legal foundations and narratives, to wider political and social context, especially in relation to the preference of individual or collective policy solutions.
Book (1)
Gender equality law in Czechia, as in other parts of post-socialist Central and Eastern Europe, is facing serious challenges. When obliged to adopt, interpret and apply anti-discrimination law as a condition of membership in the EU, Czech legislators and judges have repeatedly expressed hostility and demonstrated a fundamental lack of understanding of key ideas underpinning it. This important new study explores this scepticism to gender equality law, examining it with reference to legal and socio-legal developments that started in the state-socialist past and that remain relevant today. The book examines legal developments in gender-relevant areas, most importantly in equality and anti-discrimination law. But it goes further, shedding light on the underlying understandings of key concepts such as women, gender, equality, discrimination and rights. In so doing, it shows the fundamental intellectual and conceptual difficulties faced by gender equality law in Czechia. These include an essentialist understanding of differences between men and women, a notion that equality and anti-discrimination law is incompatible with freedom, and a perception that existing laws are objective and neutral, while any new gender-progressive regulation of social relations is an unacceptable interference with the ‘natural social order’. Timely and provocative, this book will be required reading for all scholars of equality and gender and the law.
Centres
Research programmes
Research Interests
Gender legal studies and feminist jurisprudence, equality and antidiscrimination law, human rights, labour law, constitutional law, EU law
