Feminist judging at a time of gender equality backlash and resistance in Central and Eastern Europe

After declaring the Istanbul Convention unconstitutional in 2018 due to espousing a hidden ‘gender ideology‘ (case 3/2018), in October 2021 the Bulgarian Constitutional Court (BCC) proclaimed the constitutional term ‘sex‘ as exclusively biologically determined and without a socially constructed dimension (case 6/2021). For the first time, the Court explicitly coupled Bulgaria‘s constitutional identity with the religious values and beliefs of the Bulgarian Orthodox Church, which was invited to submit opinions in both cases. Both decisions were delivered among rising nationalist, Christian conservative narratives, fuelled by the pervasive anti-LGBT (and generally anti-human rights) rhetoric in Bulgaria‘s social, political and media mainstream. Adopting a law-in-context approach, this paper will assess whether and how these narratives have penetrated the BCC‘s jurisprudence and their potential implications for the fraught relationship between gender and constitutionalism in Bulgaria.

The paper will argue that rather than taking a non-feminist approach to a substantive issue, the lack of feminist judgments can be due to the strategy of a court to avoid hard decisions on merit. Two examples from Czechia will be analysed in depth. First, in a case concerning the lack of access of foreign pregnant women and their newborns to the system of public health insurance (Judgment of 3 May 2017, Pl. ÚS 2/15), the issue was a subsumption of the issue under a non-justiciable right (rather than an equally valid and appropriate justiciable right), which allowed the court majority to leave the decision to the legislator. Second, in a case on recognition of foreign adoption by (same-sex) registered partners (Judgment of 15 December 2020, Pl. ÚS 6/20), the majority avoided the human rights dimension and focused on conflict of laws aspects only.

The nature of judicial impartiality and independence encourages critical reasoning and requires judges to argue alternative interpretations of often ambiguous cases and laws. However, Serbian judges do not apply these principles when it comes to human rights and gender equality. Instead, they take a very formalistic approach when they interpret the facts of the case and apply legal rules, also visible in their view of international norms and standards. Only a few judgments invoke provisions of the ECHR, and even fewer the judgments of the ECtHR, despite Serbia being bound by the Convention since 2004. Work overload and a quantitative approach to judicial promotion leads to judgments becoming routine, while legal education remains formalistic and does not incorporate human rights and gender equality. Moreover, human rights are dominantly perceived as a threat to national sovereignty, which seeps into some judgments.

This paper argues that the style of judicial reasoning and the judicial culture prevalent in CEE courts makes a feminist judgments project for the region both especially relevant and particularly challenging. These courts often do not perceive themselves as discursive courts (i.e. do not see their audience as being also the general public to whom to justify their reasoning) and produce judgments that are dry and couched in the language of applying objective norms rather than solving complex conflicts. The paper takes as its case study the Romanian Constitutional Court‘s 2016 decision validating a citizens‘ initiative on the constitutional definition of the family. Even while paying lip service to various theories of judicial interpretation and to international human rights law, the judgment illustrates the limits of formalistic legal reasoning, an impoverished rights review culture, and insufficient dialogic engagement with other constitutional and supranational actors.