Women, Gender and Constitutionalism in Central and Eastern Europe

Czechia and Slovakia share several institutional features which have been determinative of whether and how gender issues get constitutionalized, especially via litigation. Constitutional cases have often aimed to conserve current gender relations rather than to change them. In deciding them, both Constitutional Courts have been avoiding genuine decisions on merit, be it by dismissing cases as manifestly unfounded, by focusing on procedural or other non-human-rights-related matters, narrowing standing or by showing excessive deference to the legislator. In both countries, two substantive areas have been at the center of attention: bodies and family. For bodies, women‘s control over them especially in pregnancy and birth has been the focus and the constitutional discourse has been characterized by deference to medical expertise over women‘s rights. As for family, there has been an emphasis on biological parenthood and privileging of traditional, complete heterosexual family.

Despite a lack of strategic litigation culture, and of previous experience with popular engagement on the constitutional front, the constitutional courts and texts in both Romania and Bulgaria have become venues for unprecedented contestation of gender relations over the last years. This paper focuses on two recent cases of the Romanian Constitutional Court (RCC) and respectively of the Bulgarian Constitutional Court (BCC) that have adopted completely different approaches towards gender issues despite the similarities between the constitutional discourses on gender in both countries – the decision of the BCC that the Istanbul Convention is unconstitutional (2018) and the judgment of the RCC annulling a law that sought to ban gender studies (2020). In order to explain this disparity, the paper will use a “law in context“ method that considers the different institutional designs of both courts as well as shared and distinctive social, political, historical and geographical factors.

Gender equality advancements have been far from straightforward in Croatia in Slovenia since both countries gained independence at the beginning of the 1990s. With a focus on selected constitutional issues relating to reproductive rights and the definition of marriage and parenthood, the paper discusses crucial moments that shaped the constitutional (and societal) position of women and sexual minorities. Chronologically divided into three major parts (starting with the breakup of the SFRY and the ensuing constitutional developments, discussing the EU accession period(s), and concluding with the rise of populism and anti-gender activism in both countries), the paper discusses the advancements and setbacks in the constitutional construction of gender regimes in both countries over the past three decades.