High Courts and Women‘s Rights

The clash between religious patriarchy and women‘s rights to equality and to control over their bodies has reached new heights. The American Supreme Court has played a pivotal role in this battle, transforming into a bastion of private prejudice. In its rulings the Court has repeatedly narrowed women‘s reproductive rights, while granting private citizens the power to enforce their prejudices to restrict women‘s choices. This trend, that has started and expanded through the Hobby Lobby line of cases, has recently culminated in the Texan Whole Women‘s Health v. Jackson case. In this case the Court has taken an unprecedented further step in the transfer of the power to control women‘s bodies into the hands of private third parties, by effectively approving the reinstitution of the notorious bounty system as a means of preventing women from exercising their right to have an abortion. I will discuss the implications of these developments for women‘s rights and for the rule of law in the US

The presentation will expose the development of the gender perspective in the jurisprudence of the ICHR. It will critically review the criteria used by the Court in its evolution, trying to reveal the theories or movements of Latin American feminism behind. That assessment will include some dissenting votes to show disagreements within feminist interpretations. Finally, it will analyze the relationship between that jurisprudence and its reception or resistance in the IAHRS‘ States Parties.

Applying the feminist perspective, better known as gender mainstreaming, to justice, means assuming that the legal system, its rules and its applicators, are subject to a gender-conditioned bias. This bias prevents to consider the particularities of subjective and fundamental rights when the women are their titular. It prevents us understand the factual differences between men and women underlying the legal problems they face. It prevents to reach more appropriate material justice, taking into account the diverse effects that justice decisions can have on men and women. Such a bias, ubiquitous and implicit, is the one that seeks to overcome the gender perspective in the office of judging. This article raises how this overcoming is addressed in the field of action of the Spanish Constitutional Court.

The European Court of Human Rights has had a step-by-step attitude towards the recognition of a specific approach needed when dealing with rights affecting women. Although art 14 of the European Convention on Human Rights recognises the principle of non-discrimination, sex included, the development of case law on women‘s rights as a specific area of rights arrived rather late in comparison, for example, to the InterAmerican Court. After some initial hesitation, the Court has recognised the domestic violence as a gendered based violence, that means, a consequence of the discrimination suffered by women for ages. It must be pointed out that the commitment of the Council of Europe with combating violence against women has increases considerably since the entry into force of the Istanbul Convention. In any case, the heterogenous background of the 47 member states to the European Convention is holding back other recognitions as the right to a safe abortion or the right to divorce.

This paper will analyse recent contributions on women's rights from the the Australian High Court. As a part of the Commonwealth, this system has peculiarities that make it interesting to study. It is under the influence of the principle of parliamentary sovereignty, but we can notice differences to guaranteeing equality from, for example, Canada, that has a constitutional recognition of equality as a right (Section 15 of the Canadian Charter of Rights and Freedoms). This study will assess whether the constitutional guarantee of equality brings added value compared to cases where gender equality measures are articulated at the legislative level.