How does gender discrimination affect women?
Prof. Dr. Ute Sacksofsky, M. P. A. (Harvard) is Professor of Public Law and Comparative Law at the Faculty of Law at Goethe University Frankfurt am Main. Since 2014 she has been Vice President of the State Court of Hesse, from 2015 to 2018 she was dean or pro-dean of the Faculty of Law and from 2018 to 2020 a board member of the Association of German Constitutional Law Teachers. Her main research interests are constitutional law, gender relations in law, economic instruments in administrative law, finance and tax law as well as comparative constitutional law with a focus on the USA.
equal rightsWhen the (few) mothers and (many) fathers of the Basic Law agreed to include equality between men and women in the constitution, the law was in many ways still characterized by clear discrimination against women. This was especially true in the area of the family. The husband not only made decisions about all matters of marital life, residence and children, but also had to agree, for example, if his wife wanted to work.
It was and is obvious that such regulations cannot be reconciled with equality. In a special article (Article 117, Paragraph 1 of the Basic Law), the Basic Law gave the legislature until March 31, 1953, to shape the entire legal system in accordance with equality. But the process took much longer than the constitution's mothers and fathers had imagined at the time. In the 1990s, there were still regulations that explicitly discriminated against women. In the meantime, however, there are hardly any laws that link legal consequences to a specific gender. Has this also made the principle of equality superfluous?
Two understandings of equality
One (still widespread) view wants the principle of equality in the Basic Law exclusively as Prohibition of differentiation understand. According to this, equality prohibits the use of the attribute gender in the law. Many people intuitively tend to understand the principle of equality in this way and it also shaped the case law of the Federal Constitutional Court in the past. The gender, for which no one can "do anything", should be irrelevant for the allocation of rights and duties.
Precisely because gender has a strong influence on the identity of a person, it seems extremely explosive to apply this criterion in the legal system. Its use carries the risk of not only ordering different legal consequences, but also making judgments about the supposedly higher or lower value of a person; Ultimately, it may even be possible to deprive her of the same human dignity. In addition, the advantages of the prohibition of differentiation in use are obvious. The principle is just as easy to use as its concise formulation suggests: If the attribute gender occurs, a norm is unconstitutional, if it does not occur, it is constitutional. It judges without regard to the person and thus corresponds - according to the American law professor Owen Fiss - to the epitome of all law, the blind Justitia.
A more recent view, however, understands the principle of equality not only formally, but also materially; it includes the actual effects of regulations in the examination. According to her, it does not (only) matter whether the attribute gender is used expressly. The more recent case law of the Federal Constitutional Court also takes such a position: The principle of equality not only wants to eliminate legal norms that link advantages or disadvantages to gender characteristics, but also to enforce gender equality in the future. According to the court, the principle of equal rights aims "at the approximation of living conditions". The legislature also recognized that it was not enough to abolish the law that differentiates between the sexes. During the constitutional reform of 1994, a further sentence was therefore included in the Basic Law: "The state promotes the actual implementation of equality between women and men and works towards the elimination of existing disadvantages" (Article 3, Paragraph 2, Sentence 2 of the Basic Law).
How it works with regard to phases of discrimination
The central reason for the more modern view described can be seen if the phases of the legal fight against discrimination are considered.
With an understanding of the principle of equal rights as a prohibition of differentiation, only formal equality can be achieved. The ideal and result is a legal system that makes no reference to gender. Understood as a prohibition of differentiation, the function of the principle of equality has essentially been done today, since equality - on paper - has been realized.
It is questionable, however, whether discrimination can be adequately combated on the basis of such an understanding. Discrimination typically takes place in several phases. To put it simply, three phases of legal discrimination can be distinguished, which can overlap and in the course of which setbacks cannot be ruled out. These phases correspond to the historical development, as it can be observed with the discrimination against women in Europe and similarly with the racist discrimination in the USA.
In the first phase the category gender or race is used in the legal system in order to explicitly differentiate between first and second class people. Such regulations are expressed in the deprivation of citizenship, as manifested for example in apartheid (the racial segregation in the former South Africa), in the exclusion from the right to vote or in the subordination of wives to husbands. In this phase, when the violation of human rights is particularly evident, the ban on using the characteristic concerned is a sensible and sufficient means of reducing discrimination. An understanding of the special equality clauses as prohibitions of differentiation is appropriate.
In a second phase, which can be observed above all in connection with the discrimination of women, the aim is to dismantle less serious differentiations: There are still a number of legal norms that are linked to the characteristic of gender, but appear justified for a transitional phase because they apply to typical constellations . To combat this discrimination, an understanding of the principle of equality can also serve as a prohibition of differentiation. By prohibiting the use of the attribute gender, it prohibits gender stereotyping. Because gender is not a precise characteristic for predicting human abilities. If you want to spare the physically weak from certain work, it is forbidden to use the attribute gender, even if it should be true that women have on average less physical strength than men. But not all of them: there are strong women and weak men. In this second phase of dismantling discrimination, the prohibition of differentiation primarily benefits "atypical women", ie those who do not have the typical characteristics of their female counterparts, but rather correspond to the respective male standards.
In addition, the "privileges" of women are put to the test in this phase: special occupational health and safety regulations, exclusion from the fire service or military service, additional free housework days for women, earlier retirement or the widow's pension that the widower does not receive to name a few examples. In this phase, men also increasingly rely on the principle of equality; the prohibition of differentiation benefits them. But most of these "privileges" for women are ambiguous anyway. Not only do they favor women, they also discriminate against them. The ban on night work excludes women from higher-paying jobs; the employed woman sees her surviving spouse less well cared for than an employed man sees his spouse. Even regulations that are clearly only beneficial for the individual woman concerned, such as exemption from compulsory military service, reinforce patriarchal societal ideas about the differences between the sexes.
While in this second phase the prohibition of differentiation can lead to largely appropriate results, this changes decisively after all regulations expressly differentiating according to gender have been removed. Now it works in one third phase the question of the extent to which the typical institutions of society are designed to conform to equality. We are currently in this phase. It's about structural changes. An example: Society has established itself according to the traditional division of roles between men and women. A clear example of this is the long-term disadvantage of part-time workers, mainly because the "normal worker" is thought of as a full-time worker. This has an impact on labor and social law, without reference to the characteristic of gender in the relevant legal norms. If one is satisfied with formal gender equality, the fact that the full pension can only be achieved with an uninterrupted career is irrelevant. Because there is no logically compelling reason why women are more likely than men to interrupt their career path - for example because of childcare. Such typical gender-related different effects are only considered if they are not eliminated from the outset by solely focusing on formal equal treatment.
Discrimination lawsuits in court
Julia Oesterling [...] has often seen how women are paid unequally for the same work and hardly have a chance of a career. "Very few women are willing to take legal action against it," says the Berlin lawyer. It's not just because they don't dare to do it. Many of them didn't even have the money.
In labor law litigation, you have to bear the costs of your own lawyer yourself in the first instance, even if you win later. In addition, the deadlines in such processes are very short: within two months of the alleged discrimination, a claim for damages or compensation must be submitted in writing to the employer. If he does not pay, you have to file a suit against him within a further three months in order to receive compensation. "And with a discrimination lawsuit, the employment relationship is usually ended," says lawyer Oesterling. [...]
Most lawsuits before the labor court end in settlements. As a result, there are extremely few judgments relating to gender discrimination. This closes a vicious circle: comparisons are not published, so women affected feel in the dark when it comes to the legal situation. This in turn usually prevents them from suing in court.
There has long been a way in which discrimination can be combated. A critical mass is required, as numerous psychological studies have shown: one third women at the top. This is how male structures changed, my behavioral economists like Iris Bohnet from Harvard University. [...]
Kerstin Bund / Astrid Geisler / Anne Kunze, "The big difference", in: DIE ZEIT No. 13 of March 21, 2019
The central legal figure to break such apparently gender-neutral, discriminatory structures is "indirect disadvantage". According to this, regulations are also forbidden that have a predominantly negative effect on women and that cannot be justified by good reasons. An example that the European Court of Justice had to rule on in 2017: In Greece, a minimum height of 1.70 meters has been required for admission to training in the police service since 2003. This regulation was completely "gender neutral", because the minimum height applied to both men and women. With the above-described understanding of equality as a prohibition of differentiation, one has to approve of the regulation.
Still, there is a problem: it is evident that a minimum height excludes many more women than men; there is an indirect disadvantage. Due to the legal figure of indirect disadvantage, it is required that there are good reasons for such a regulation. The Greek government had pleaded that the police would be ready for action. The European Court of Justice rejects this argument. Although ensuring operational readiness is to be recognized as an important goal, the physical suitability required for this does not necessarily result from a minimum body size.
This example shows how important the legal figure of indirect disadvantage is. Because traditional structures come from a time that was shaped by patriarchy. If these structures are not checked for their necessity, women will continue to fall through the cracks.
Equality instrumentsAfter it had been shown that the elimination of regulations linked to gender was a long way from establishing real equality between men and women, additional instruments should actively ensure equality. For example, the federal and state governments have been enacting equality laws since the 1980s, which typically contained a whole range of measures to achieve this goal.
Equal Opportunities Officer
An important instrument was the creation of the position of an equal opportunities officer (before 2006 under the name of women's officer, see also section Equal Treatment Act, AGG, in the following chapter) in the public administration. The equality officers should ensure that discrimination does not occur, promote equality and introduce appropriate measures. They are therefore involved in many administrative procedures and are supposed to monitor that everything is running properly. They develop the equality plans (see below), propose specific instruments for achieving equality and also serve as a point of contact in the event of sexual harassment.
Most equality laws contain the requirement that equality plans - in the 1980s they were still called women's advancement plans - be drawn up in every department. In addition to documenting the current situation, these must specify goals for improving equality in the subsequent, mostly four or five years. But what happens if these goals are not achieved? The sanctions of the laws are mostly harmless: The Federal Equal Opportunities Act, for example, only provides that the deviations must be justified.
When recruiting into the public service, the qualifications of the applicants play a decisive role.Article 33 paragraph 2 of the Basic Law states: "Every German has equal access to every public office according to his suitability, qualifications and professional performance." In most cases, however, the assessment of qualifications is only objective to a limited extent: Different criteria can be considered decisive and the question of how well a person available for selection fulfills a criterion can also be assessed differently. There is a broad gateway for discrimination here. For example, many see the brisk demeanor of an applicant as a signal of assertiveness, while the identical behavior of an applicant is perceived as aggressive.
The equality laws attempt to counteract this in two ways. The consideration of certain criteria is explicitly forbidden, such as seniority, the time of the last promotion or the income situation of the spouse - all criteria that had previously often had an adverse effect on women. Other criteria, however, should be included in the decision, in particular experience and skills that have been acquired through family and care-related tasks.
Initially, there was great hope in quota regulations. Because of the performance principle in the Basic Law, these typically had the form that in areas in which women were underrepresented, women should be preferred if they were equally qualified (so-called decision quota). The (underrepresented) gender should serve as the icing on the cake. But even this - very weak - form of quota regulations met with considerable resistance. Those who were against the quotas argued that this was a violation of the principle of equality because the use of the attribute gender was inadmissible in the legal system. For the prohibition of differentiation, it is irrelevant to whose gender and for what purposes. Those who supported the quota system opposed it; it makes a significant difference whether gender is used to discriminate or to promote the inclusion of disadvantaged groups. This dispute was often fought out in court. The debate subsided after the European Court of Justice ruled in two cases that "absolute and unconditional" quotas are not compatible with European law, whereas soft quotas with hardship clauses that also take into account the situation of male applicants are.
Regulation of the gender categoryThe division of people into (only) two, fundamentally unchangeable genders - men and women - has long been a natural basis of the German legal system and society. One could have expected that this basic requirement would also be normatively recorded in a prominent place, for example in the constitution or at the beginning of the civil code. But there is no such express standardization. Regulations are only found in hidden places, such as the entry of gender in the birth register or in the birth certificate.
To this day, the law has refrained from stating what exactly results from which genders exist or what femininity or masculinity is attached to. Only a change made in 2016 for intersex children explicitly names the two traditional genders ("Can the child neither be assigned to the female nor the male gender ..."). The law automatically bases, so to speak, on the beliefs that exist in society. An interesting interaction can be observed here: as long as something is taken for granted, it is not expressly regulated by law.
The particular fixation of a situation in law therefore often refers to times of transition. This is how the explicit regulation of motherhood comes from: "The mother of a child is the woman who gave birth to it." (§ 1591 BGB) not from the 19th century, but only from 1997, when the development of reproductive medicine shook things that were taken for granted earlier, such as natural birth. A stipulation that a marriage requires people of the opposite sex has never even been made in the Civil Code, it has always only been presupposed. Only since 2017 has the law even addressed the sex of the spouse: Since marriage was opened to everyone, the law has stipulated "The marriage of two people of the same sex or of the same sex is for life." (§ 1353 BGB).
The gradual openings and changes in the law regarding gender are particularly important for three groups of people: homosexual, transsexual and intersexual people.
Male homosexuality has long been criminalized. Homosexual men could go to jail for their way of life. The Federal Constitutional Court approved this old section 175 of the Criminal Code in 1957. Special penal provisions for male homosexuals were finally abolished in 1994. The Life Partnership Act passed in 2001 represented an important step towards the equality of homosexual partnerships. This enabled them to enter into a solidified legal relationship. Initially, couples entering into a civil partnership were deprived of a number of marriage privileges. Only after numerous court decisions, both by the Federal Constitutional Court and the European Court of Justice, were many of these inequalities resolved. A (preliminary) end point was the opening of marriage to same-sex couples in 2017.
Dealing with changes in gender was also strictly regulated. People who could be physically assigned to one gender, but psychologically felt that they belonged to the opposite sex, had no opportunity to live in their psychological gender for many years. Only a decision by the Federal Constitutional Court in 1978 made it possible for transsexual people to officially change their sex at all. The Transsexual Act - relatively extensive for the time - was passed in 1980 as a result of this decision. The further improvements for transsexual people were also largely initiated by the case law of the Federal Constitutional Court, which gradually declared more and more restrictions to be unconstitutional. However, the law sets considerable limits on the free choice of gender: on September 6, 2017, the Federal Court of Justice ruled that a woman-to-man transsexual who has given birth to a child must be entered in the birth register as a "mother".
For many years there was also massive suffering for intersex people, i.e. people whose gender appearance is not only male or female, but rather a mixture. They were often forced to have a gender, which was usually associated with irreversible medical interventions. In particular, it has not yet been forbidden for parents to medically disambiguate the gender of their child at a point in time when they are not yet able to form their own will. In 2016, it was legally made possible that the gender of intersex children can be omitted from the birth certificate. But this regulation of simply leaving the gender entry open also violated the fundamental rights of those affected. The Federal Constitutional Court demanded that - if the legislature requires gender registration at all - a positive gender entry must also be possible for intersex people. The legislature then changed the Civil Status Act at the end of 2018 so that the gender information "diverse" can also be entered in the birth register.
Overall, it can be shown that the definition of a binary gender order in law is slowly weakening.
On the loss of importance of gender
In European societies, which historically have known only two sex classes for a long time, more people come into question for this "gap" than is generally known. These societies - under medical direction - have produced three figures between the sexes for only a small segment of their populations: intersexuals [...] are physically between the sexes. [...] Transsexuals colonize an in-between space in self-portrayal and self-image without ever being able to "unambiguously" arrive at the other side. Finally, homosexuals were regarded as intersex beings with regard to the choice of sexual partner [...] for about a century. Remnants of this categorization as "third gender" can still be found in aesthetic forms of their lifestyle and in everyday stereotypes.
In addition to these three figures, the binary gender classification also affects the growing number of people who work in non-gender-typical professions, such as nurses, educators, soldiers, truckers [...]. They see themselves [...] exposed to the alternative of either experiencing a dissonance between their gender and their occupation (for example, exposing themselves to the accusation of "unfemininity" or "unmanliness") or, shrugging their shoulders, insisting that their gender is relevant to their occupation is completely irrelevant, is irrelevant, and is basically nobody's business.
With this second posture, they move into a different gender gap. Not that of "intersexuality", but that of indifference. [...] Society has differentiated itself into different fields since modern times, and gender is simply irrelevant to the way most of these fields function. Its importance has focused on private life and interactional relationships. […] Even in terms of self-image […], gender takes a back seat: its relevance to identity takes a back seat to professional identity, level of education or political and religious convictions. The law has partly reproduced this development, partly forced it by calling for gender blindness to be prominent in the constitutions of democratic societies, where gender is irrelevant. There are now numerous social institutions where this gender indifference is one of the normalized expectations: Gender must not play a role when it comes to evaluating by means of censorship, the making of court judgments or the allocation of jobs. [...]
But there are also signs of growing gender indifference in private life. [...] What was once determined by gender has become the subject of individual negotiation in most couple relationships. […] Further signs of growing gender indifference are the increase in bisexual orientations, that is, a more gender-independent choice of sexual partners. [...]. The legal representation of this development is the opening of marriage to homosexuals. [...]
In view of the social developments mentioned, a third gender option from a sociological point of view is a culturally obvious correction with which the law reproduces a social development that is deeply rooted in the individualizing structures of modern society. [...]
Stefan Hirschauer is Professor of Sociology and Gender Studies at the University of Mainz.
Stefan Hirschauer, "In the space between the sexes", in: Frankfurter Allgemeine Zeitung, from November 10, 2017
And where is the reproduction? Two positions
The free development of all individual gender and sexual variants, now also protected by the Constitutional Court, is to be welcomed. Nonetheless, there is an irreversible tension on the universal motive of starting a family and the heterosexuality that is indispensable for it. [...]
Andreas Hansert, "And the reproduction?", In: Frankfurter Allgemeine Zeitung, from November 16, 2017
Others see it differently: For example, a trans man who gave birth to a child complained that he was entered in the birth certificate as the father and not as the mother of the child.
Central legal battlesGiven the wide range of areas in which women have fought for their rights, a complete overview is impossible. Therefore only the "long-running hits", the much discussed major topics, can be highlighted here. It is of course important to see that the detailed work is of enormous importance for legal practice. Whether a law contains a certain - apparently secondary and merely formal - clause can be of eminent importance to a number of women. Just think of the age limits for public employment, which are more difficult for women to meet because of their frequently interrupted and convoluted biographies.
Family law was one of the first and central areas of feminist legal policy. Until 1957, the patriarchal family law of the civil code in its original version from 1900 was valid. After that, the man was entitled to decide on all matters relating to the joint marital life; the woman's property became the management and usufruct of the man through the marriage subject, and he could even terminate her employment "if it turns out that the woman's activity affects marital interests" (§ 1358 old version). When it comes to parental care, the father's opinion prevailed.
The (so-called) Equal Rights Act of 1957 removed only part of the discriminatory regulations. Although the husband's right to determine was abolished, the father's right to make decisions remained until the Federal Constitutional Court declared it invalid and null and void in 1959. The divorce reform in 1977 brought great progress, making it possible for women for the first time to separate themselves from their husbands without having to fear the loss of their children and / or their livelihood.
But the reform by no means created equal family law, because the consequences of divorce were and are in many cases more serious for women than for men. This is particularly evident in the law on maintenance and custody. Since the maintenance reform in 2008, the principle of personal responsibility has been in place, so that women can no longer prepare for permanent maintenance payments even after a long marriage. This is particularly problematic in view of the fact that the state continues to provide incentives for "housewife marriages" through spousal splitting. Because only those marriages in which the income differences between the spouses are as large as possible benefit from spouse splitting - marriages of double earners do not receive any tax relief from the state.
Status: February 2016, based on: https://www.wirtschaftundschule.de/wirtschaftslexikon/e/ehegattensplitting/ updated by Ute Sacksofsky 2020
In the last few years, significant gender equality policy measures have been achieved, particularly with regard to care work. These include, for example, the legal right to public childcare, the flexibilisation of parental leave and the right to return to full-time work after part-time work. In this area in particular, it has been shown that gender equality policy does not only bring advantages for women: Men also benefit, for example when they can break away from traditional gender role stereotypes through the specific design of the right to parental leave and it is easier for them to take part in looking after their children.
Abortion and Human Genetics
The "I have an abortion" campaign in the magazine "Stern" in 1971 was a central moment in the second German women's movement. Until 1974, termination of pregnancy was generally a criminal offense in Germany. The liberalization that took place in 1974 in the sense of a time limit was declared unconstitutional by the Federal Constitutional Court: In the interests of protecting unborn life, the court demanded that an abortion must be punished. Many women experienced this decision as misogynistic. According to this, termination of pregnancy was only possible if certain conditions, so-called indications, were met.
Since the time limit solution had been valid law in the GDR since 1972 and the reunification in 1990 offered a harmonization of the jurisprudence on this point, this led in 1993 to a renewed attempt to liberalize abortion, which in turn ended up before the Federal Constitutional Court. This time the court had a harder time. It verbally condemned the termination of pregnancy in clear terms and demanded that this disapproval be expressed in the legal system. It therefore criticized many details of the regulation, but accepted its basic concept, the so-called advisory solution, (disapprovingly). This is still valid today. Women are still not fully self-determined about the termination of a pregnancy: Termination of pregnancy is prohibited under criminal law (as is public information about it from doctors). However, women who decide to have an abortion after consultation and within 12 weeks of conception remain unpunished, as are doctors who perform an abortion under these conditions.
While the women's movement is unanimous in calling for the liberalization of abortion, the new developments in human genetic research are controversial. This applies in particular to procedures such as pre-implantation diagnosis (PGD), which is used to decide whether an embryo created by in vitro fertilization is implanted in the uterus (see also section The contradicting progress of new reproductive technologies in the chapter Gender Relations in the 21st Century). Some feminists see this as expanding women's scope for decision-making, others are very skeptical of these new developments because of the social pressure to standardize and the associated health risks for women.
Another central women's political issue in law has always been the protection against sexual violence in its various forms and how it is dealt with. Here feminist legal criticism led to a paradigm shift. Instead of dealing primarily with the perpetrator, the focus should be on the victim's perspective.
For a long time, one goal was to be able to punish rape as rape in marriage; In 1997 it was achieved. In the meantime, the engagement of women's groups and their involvement in corresponding projects has made it possible to improve the approach to domestic violence. In particular, women are no longer relegated to criminal sanctions due to the Violence Protection Act of 2001, but can also ensure that it is not them, but the perpetrator who has to leave the shared apartment.
The impetus for equality in labor law came mainly from European law. In addition to the "long-running hits" of equal pay for work of equal value and occupational health and safety, the handling of pregnant workers and part-time workers has been improved. Here the legal figure of indirect disadvantage was particularly successful (see above). In contrast, the social security regulations are still primarily characterized by the image of the (male) normal employee, which leads to considerable disadvantages for women when it comes to retirement.
General Equal Treatment Act (AGG)
After long, controversial discussions - fears about restrictions, in particular on the free market economy, faced demands for protection and equal treatment for all - the General Equal Treatment Act came into force in August 2006. With it - belatedly - four anti-discrimination directives of the European Union, which had been enacted since 2000, were implemented.
The AGG regulates two central areas: On the one hand, it protects against discrimination in working life, and on the other, it prohibits discrimination in general civil law transactions. The protection of the AGG extends far beyond the gender category. It also wants to prevent or eliminate "discrimination based on race or ethnic origin, [...] religion or belief, disability, age or sexual identity".
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