Gender and illiberal constitutionalism from the Polish ang Hungarian perspective

The paper addresses the state-level of what is referred to as “gender regime“ (in the current Western social theory) in a broad sense: the realm of legislation and policies that govern women‘s issues, moreover the issues relating to sexual orientation and gender identity in Hungary. The analysis presents the developments regarding the following five topics: i) equality between women and men, ii) women‘s bodies, iii) gender-based violence, iv) relationships, v) self-identified gender. Time frame covers developments since the political change in 1989/90, but at certain points looks further back in time. The paper concentrates on the constitutional level but discusses ordinary legislation as well to provide context. It aims to consider the changing nature of the “gender regime“ in Hungary. The presumption is that the tendencies regarding the different issues are not necessarily convergent, and the approaches may be manifold, thus making a univocal and coherent narrative can be difficult.

Since the populist takeover in CEE countries, scholars have focused on women‘s rights, using terms such as anti-gender mobilization or gender backlash. These terms primarily refer to policies carried out by populists. Nevertheless, over the last few years in CEE, women‘s rights and freedoms have been intensely challenged also before the Constitutional Courts, particularly reproductive rights and freedom from violence. I put forward the thesis that institutions of liberal democracy, such as constitutional courts, which were established to protect liberal rights and freedoms, are now being used to restrict them. Moreover, right-wing organizations use legal mobilization mechanisms to restrict women‘s rights. In my presentation, I will indicate how ideologically motivated rulings were possible, and I will reconstruct the actions of right-wing organizations and ways of influencing the Polish Constitutional Court.

This article describes the three stages of Polish constitutionalism - transitional, consolidated and illiberal - and the gender regime that dominates them. It argues that the post-1989 democratization process came at the expense of limiting women's reproductive rights while recognizing their rights within the family. This trend has intensified under illiberal constitutionalism (since 2015), especially in recent Constitutional Court decisions and official government policies that lead to a re-traditionalisation of gender roles despite the visible social change. The article argues that there is the invisible social contract between those in power and the Catholic Church that underlies power relations in Poland and proves insensitive to social change and mass protest.