The power of one woman: the progress of gender equality in the European Union

International Women's Day: Citizens’ activism, legal battles and indirect democracy have expanded the gender rights in Europe, decade after decade

[As part of our celebration of International Women’s Day, DemocracySOS welcomes as a guest contributor Dr. Berit Ebert, who is on the faculty of Bard College in Berlin. Dr. Ebert specializes in European Union law with a focus on gender equality, European integration, subnational influence on policy and law-making in the EU, and theories of justice. In addition, Dr. Ebert is the Director of Public Programs and Strategic Initiatives at Bard College Berlin. Prior, she served as Vice President of Programs at the American Academy in Berlin, where she oversaw the institution’s academic and public programming. She has also been affiliated with UNESCO in South Africa and the Committee for Foreign Affairs at the Deutsche Bundestag.]

It took roughly two decades until women’s rights made their way into European Union (EU) law. In the Treaty of Rome from 1957, which established the European Economic Community (EEC), a single article significantly influenced the development of EEC law in the subsequent decades (the EEC later evolved into the European Union, starting in 1993). The founding EEC member states – Belgium, France, Germany, Italy, Luxembourg, and the Netherlands – included the legal requirement of equal pay for men and women, known as Article 119 EEC. With this new law, the topic of gender equality was introduced, laying the foundation for women’s rights that would be built upon over the decades to come. But it would take many years of legal battles and citizens’ activism before these efforts would bear fruit.

The bravery of flight attendant Gabrielle Defrenne

While a legal basis for gender equality was established in 1957, the law was weak and rarely enforced. So nearly 20 years later, it took an unlikely hero – a flight attendant – to push the march for women’s rights forward.

After a deep sleep that lasted a decade, the famous Herstal strike in 1966 set the stage. Three thousand female armament workers went on strike to fight for equal payment at the Belgian national arms factory. This was the first time that women explicitly called for the application of Article 119 EEC, attracting international attention and boosting what would become a second wave of feminism in the 1970s.

Several years later, an unknown Belgian flight attendant, Gabrielle Defrenne, challenged unequal pay for women and men at the Belgian national Sabena Airlines. Defrenne received a lower wage than her male colleagues and was forced by the company to retire at the age of 40, unlike her male counterparts, because she was allegedly “too old.” Her Belgian attorney, Éliane Vogel-Polsky, who became prominent in sex discrimination law, invoked Article 119 EEC.

Three Defrenne cases eventually reached the European Court of Justice (which today is the Court of Justice of the European Union, CJEU). Its judges affirmed the prohibition of wage discrimination in Defrenne 2 (1976). Defrenne won her case and was granted back pay. In the third ruling of 1978, the Court went a step further and emphasized the broader scope of the principle of equal pay:

“Fundamental personal human rights form part of the general principles of Community law [...]. The elimination of discrimination based on sex forms part of those fundamental rights.”

The ECJ had declared that gender equality is a human right. Yet, at the time, the Court did not consider itself responsible for enforcing this principle, especially when it came to working conditions beyond equal pay. Despite the Court’s confirmation that the European Commission, which was part of the executive branch of the EEC (and today heads the European Union), is mandated to pursue social goals, this area of policy was considered subject to the national law of each member state. And the treaties and laws of EEC member states did not provide the legal foundation to mandate equal working conditions.

Part of the challenge was that national and European law was still based on binary gender constructions and did not follow the universal human rights logic that the justices affirmed in the third Defrenne decision. Legal comparisons were made by looking at men on the one side and women on the other. At times, this led to the arbitrary treatment of both women and men.

In 1986, a discrimination of part-time workers could only be claimed when the majority of the cohort of disadvantaged workers consisted of female employees. Old binary role models were confirmed by denying men access to professions traditionally carried out by female workers, such as the midwife profession (Commission/UK, 1983). Even as late as 1999, the exclusion of women from the Royal Marines was regarded as well in accordance with EU law (Sirdar) since women, stated the Court, were considered not as broadly deployable as men. In the case of “serious internal disturbances” (Johnston), armed policewomen were even considered to be a risk for public safety.

Another part of the ECJ’s reluctance over enforcement in the Defrenne cases was more practical. No doubt, the principle of back pay would have huge ramifications for many companies and governments. The seven‐member panel of the Court’s judges tempered the ruling by saying that only those who had filed claims with the Court to date could win similar retroactive treatment. Otherwise, thousands of European women would demand back pay. Ireland claimed it would owe government employees alone $80 million, and British officials said the bill for its Government and industry could have been $2 billion.

Nevertheless, a new advance had been made in the struggle for women’s rights. Who knows when gender equality would have entered the European arena without the thankless efforts of those two persistent women, Gabrielle Defrenne and her determined attorney, Éliane Vogel-Polsky?

The United Nations enters the fray

During the 1970s and 1980s, women’s rights gained new prominence as part of an emerging international political agenda. A global economic crisis, as well as the Helsinki Final Act (also known as the Helsinki Accords), which was signed by three dozen leading nations and elevated respect for human rights and fundamental freedoms, as well as the new gender focus of the United Nations, launched women’s rights into new levels of visibility and acceptance.

In 1975, the first UN World Conference on Women was held in Mexico City. In 1981, the Convention on the Elimination of All Forms of Discrimination Against Women came into force. This new international environment exerted pressure on the European Communities. Henceforth, the Equal Pay Directive (1975) and the Equal Treatment Directive (1976) supplemented Article 119 EEC. As part of the negotiations on the Equal Treatment Directive, Commission employee Jacqueline Nonon – again a single woman battling against all odds – created an ad-hoc group which sought to embed parental leave and other positive measures into European Community provisions. However, her efforts had little success. As in the past, the inclusion of social security measures in the two directives was stymied by resistance from national governments, which were worried about financial losses and the loss of sovereignty.

The subsequent Directive on Progressive Implementation of the Principle of Equal Treatment for Men and Women in Matters of Social Security (1978) was realized on the one hand thanks to the European Commission, which had only agreed to the weak social policy provisions in the 1976 Equal Treatment Directive upon the condition that there would be further EU and member state legislation on social matters. But another big contributor was the Defrenne rulings, which had raised the general awareness of the need for social rights ensuring equality of men and women: the same rules for all male and female employees in the case of sickness, unemployment, and retirement, rights that Europeans take for granted today.

What started with two women -- a flight attendant and her attorney – in Belgium, thenceforth led to the beginning of a whole new set of ECJ decisions resulting from actions taken by the Commission and plaintiffs via infringement procedures and preliminary rulings. Yet it is important to remember that the ECJ was only able to act if a case was brought before it. The current EU high court, the Court of Justice of the European Union (CJEU), works the same way. The courts need an individual plaintiff to actually use the law for it to be alive.

And alive it has been now, for decades: from 1971 to 2019, the directives of the 1970s and Article 119 EEC were actively invoked by plaintiffs in 29 of 66 litigation strategies before national courts and eventually the CJEU. These antecedents were also the foundation for infringement procedures initiated by the European Commission. Plaintiffs cited European law in 42 (63.6%) of these 66 ground-breaking preliminary rulings in the field of equal treatment, whilst national law was used alone in only 18 proceedings (27.3%).

The EEC legislative framework, and since 1993 the European Union framework, have encouraged and inspired individual participation, albeit by using judicial instead of political means. Court rulings from the Defrenne trilogy are still cited today as the landmark rulings that established a woman’s right to equal treatment in the workplace.

So like the federal government in the United States, the EU and its court system have been an instrumental vehicle for advancing women’s rights. Showing the importance of indirect democracy outside the electoral arena, citizens have played a decisive role in paving the way for social policy deliberations to enter Community law via filing complaints and lawsuits using EU law. European law has been used to enshrine new and binding understandings of gender roles in the law about part-time work, pregnancy, and maternity and parental leave. Decisions related to access to employment and pension benefits have followed, going well beyond the original intention of equal pay for women and men from the 1950s.

This pathway for social change – individuals using legal avenues and precedents – have continued throughout subsequent decades. In 2000, the political debate and heightened public awareness following the CJEU’s famous Kreil decision led Germany to change its constitution to enable women to work in the armed forces. Again, it was one woman, the electronic technician Tanja Kreil, who initiated the change when her application was rejected by the Bundeswehr, the German army. She was certainly not aware of the profound legal changes she was to evoke in the Federal Republic of Germany.

The right to parental leave, including the same social benefits as maternity leave, was not regulated on the EU level until the early 2000s (Hofmann; Lommers). However, the corresponding political step, namely Work-Life-Balance Directive 2019/1158, introducing parental leave and the corresponding social applicability to both mothers and fathers, was only adopted in 2019 following previous judicial actions, the majority of it initiated by individuals invoking EU law.

One clear lesson from these many decades of history is that the legal Zeitgeist needs to be benevolent for individuals to succeed. And since most member states’ legal systems have been predominantly based on binary-gender concepts, the Courts did not go so far as to challenge them. It took the arrival of new member states, especially Sweden and Finland, and the end of the Cold War, to fundamentally change the bigger picture of gender equality.

Gender identity and marriage equality

The march for women’s rights and gender equality has often proceeded hand-in-hand with the rights of other out-groups from the dominant white male patriarchy. In the EU, this included the rights of gays and lesbians, same-sex partners and transgender individuals. Over time, this also has slowly pushed the dominant boundaries and broadened the normative basis and thus the beneficiaries of EU law.

In 1997, Article 13 of the Treaty of Amsterdam set forth a fundamental principle against discrimination “based on sex, racial or ethnic origin, religion or belief, disability, age, or sexual orientation.” Throughout the 1990s, same-sex partnerships had been uncharted territory for many member states. Same-sex partnerships belong to a field of law falling within the sovereignty of the member states that involves traditional notions of family life. They touch on fundamental questions about the principles upon which a society is organized.

Heterosexual marriage was, still in the 1990s, in most member states, the standard form of organizing “family life.” In one of the first judgements on same-sex civil partnerships, Lisa Jacqueline Grant -- an eponymous lawsuit filed in 1998 by another female plaintiff who  relentlessly fought for her rights – the CJEU not only held that employees living in same-sex civil partnerships can be refused certain benefits because men and women are equally discriminated against in such matters. It also held that the legal effects of marriages and civil partnerships did not fall within the scope of the EU’s principle of non-discrimination since “in the present state of the law within the Community, stable relationships between two persons of the same sex are not regarded as equivalent to marriages or stable relationships outside marriage between persons of opposite sex.” Same-sex partnerships were, therefore, only for the national legislature to decide.

Consequently, national understandings of gender are quite different from member state to member state. Full marriage equality exists in the Netherlands, Belgium, Spain, Sweden, Portugal, Denmark, France, Luxembourg, Slovenia, Ireland, Finland, Malta, Germany, and Austria, but not in other EU states.

However, in recent years, a huge change in the CJEU’s reasoning can be observed. In the 2018 Coman case, the Court did away with the strict limits of national sovereignty and held that when a same-sex marriage is entered into by an EU citizen and a third-country national in another member state, the EU citizen’s country of origin (in this case Romania) must grant the third-country national the right of residence even if same-sex marriage is not legally recognized in that member state. In another case in December 2021, the CJEU decided that a child of two mothers is entitled to receive an identity card in the member state in which one of the mothers holds citizenship, even if that very state does not recognize same-sex marriage (V.M.A).

It is noteworthy that the CJEU did not justify its reasoning in these cases by referring to gender equality or non-discrimination. Instead, it recognized a more conservative principle -- that of the EU’s imperative to uphold the freedom of movement, which results in the necessity of recognizing the civil status law of other EU member states. The CJEU, together with plaintiffs, was able to start the respective debates by adjudicating cases that relate to gender but whose reference to EU law derives from other fields, often rooted in the common market logic. Even though it ignored the gender discourse, the CJEU was able to affirm new gender identities and homosexuality as exceptions from the heterosexual norm.

Transgender rights also have preceded in a halting series of forward steps. In the mid-1990s, globalization and an increasingly transnational network of gender activists, such as the International Lesbian, Gay, Bisexual, Trans and Intersex Association Europe or Transgender Europe, managed with great dedication and activism to place non-binary gender identities center stage, broadening the normative basis and thus the beneficiaries of EU law.

In 1996, in the legal lawsuit P v S and Cornwall County Council, the CJEU heard the first case worldwide concerning the dismissal of a trans person having undergone gender reassignment. This resulted in a landmark case which extended the scope of sex equality to discrimination against transsexuals. This case was considered an example of discrimination based on sex because the employee in question was treated “unfavourably by comparison with persons of the sex to which he or she was deemed to belong before that operation.”

Interestingly, the PvS judgement exemplifies why trans plaintiffs’ cases have been in some ways more successful than those brought forward by plaintiffs living in same-sex partnerships. The CJEU could deal with trans issues within the framework of already widely recognized concepts of man and women. In the interdependency of national and EU law, the legal traditions of the member states are a source for European law-making. The CJEU distinctly did not need to question the binary and hetero-normative foundation of the very legal systems of many member states that already had provisions on gender reassignment in their national law (albeit very often in a way that pathologized gender identity).

Thus, the procedures within the CJEU may contribute to a dynamic discourse about topics related to gender equality on the European level. As such, gender equality is not simply a matter of kindness or even human rights. Rather, it signifies a political necessity that ensures the participation of all members belonging to a political entity as they determine the conditions of their own individual human coexistence. Governments bear the responsibility to enable every citizen to realize their democratic, political, social, and economic duty and potential. Over the years, the EU has catalyzed that promise in an effort to enter a mutual deliberative relationship with its citizenry.

Conclusion: The EU courts have been a vital forum for advancing gender rights, and legal disputes have become one of the most important stages upon which new political realities are tested. Starting with the landmark Defrenne rulings establishing a woman’s right to equal treatment in the workplace, the EU courts have laid down precedent after precedent.

However, this arena has its limits. The effect of EU law on gender equality always faces constraints where legal and political make-up of fields outside the jurisprudence of the EU is concerned. These capacities can vary greatly from state to state. For instance, it remains for the member states to determine inter alia the preconditions for the legal recognition of newly emerging gender identities. Other areas of law almost always come into play: those pertaining to family and marriage law, citizenship, freedom of movement, inheritance rights, insurance, criminal law, medical as well as regulations and all the bureaucratic requirements that go hand in hand with it.

As member states channel the access their citizens have to rights guaranteed by the EU and its governing documents, political activism at the subnational, national, and European levels constitutes the imperative complement to the indirect democratic moment that plaintiffs induce when evoking EU law.

Berit Ebert