Barbara Havelkova

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 (1948–1962); 2) Reflection (1963–1968); and 3) The era of the family (1969–1989). 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 policy’s 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 women’s 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 women’s 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.

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).

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.

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 legislature’s 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.

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.