Legal and Ideological Dilemmas Regarding the Istanbul Convention

Ever since the Polish Minister of Justice, Zbigniew Ziobro, announced at a press conference towards the end of July 2020 that Poland wished to withdraw from the agreement commonly known as the Istanbul Convention, debates over the legitimacy of the document signed in the Turkish metropolis in 2011 have again intensified. During the press conference, Ziobro justified the Polish government’s decision chiefly on the grounds of ideological bias, but in-depth analysis suggests that certain provisions within the convention may also raise more specific legal problems. In addition, it is important to emphasise that on an international level, the Istanbul Convention can be seen as a key element in a legal trend which goes far beyond the stated aim of providing legal protection for women who are the victims of violence, and aims to effect changes at the societal level by altering perceptions of gender and gender relations. In consequence, it is quite wrong to view steps taken towards this goal at an international level merely as legal protections for minorities, or even as measures supporting positive discrimination, which would in any case require a wider social debate to be considered legitimate.

Ziobro was, in essence, referring to this problem when he put it to the journalists in attendance that the Polish government has in recent years clearly demonstrated that the protection and support of women are priorities, and that Polish law already complies in full with all the professional standards prescribed by the convention.¹

Poland is not, however, the first country to express grave reservations about the agreement. When Croatia ratified the convention in 2018, it included within the bill a legal reservation, stating that the Croatian state, while ratifying the bill, did not “consider itself bound” to introduce gender ideology into the country’s legal or education systems, nor to revise the constitutional definition of marriage. In an even more significant development, the Constitutional Court of Bulgaria ruled on 27 July 2018 that the Istanbul Convention was fundamentally incompatible with Bulgaria’s constitutional order, and therefore could not be integrated into the country’s legal system.²

Furthermore, according to the ruling of the Constitutional Court of Bulgaria, Section 3 (C) and Section 4 (3) of the Istanbul Convention define the concept of gender identity in a way which is incompatible with the binary definition of Bulgarian constitutional law.³

As the ruling of the Constitutional Court of Bulgaria indicated, it is difficult to obtain a clear picture of the true scope and objectives of the Istanbul Convention. The question of whether its main purpose is to provide women with legal safeguards, or rather to bring gender ideology into the mainstream, is at least open to debate. According to Radosveta Vassileva,⁴ a Bulgarian constitutional lawyer who supported the convention and criticised the decision of the Constitutional Court, this question is ultimately irrelevant, in that Article 21 of the Charter of Fundamental Rights of the European Union prohibits any discrimination on the basis of biological sex or sexual orientation. All member states of the EU including Bulgaria, are bound by the provisions of this charter. In reality, however, it is a question of great significance, given that gender mainstreaming has much more radical and fundamental goals than the objectives of either women’s rights campaigners or modern feminist movements. Indeed, sometimes the objectives of the former come into direct conflict with those of the latter groups. Gender mainstreaming defines itself formally as a preventative (!) approach to gender equality, but one which seeks not only to achieve equality for women, and indeed men, but also for so-called “non-binary” gender or sexual identities, and to restructure certain segments of social life. Women’s rights campaigns have, by contrast, traditionally sought to eliminate existing social, economic and political barriers and inequalities, to further the interests of women.

From a social philosophy perspective, the birth of gender studies is associated primarily with the work of Michel Foucault. Foucault perceived a strong reciprocal relationship between biology, changing social norms and systems of power in the postmodern era. Foucault reasoned that humanity’s success – however partial and contingent – in bringing the development of human life under its control, ensured that the threat of death likewise appeared less direct and imminent. Having laid this procedural groundwork, it then became possible for power and science to direct, control and modify how the processes of life express themselves. According to Foucault’s interpretation, it is science (specifically medical science) and the hierarchies of power which have defined the social significance of the female body, bounding it within the sphere of family life and the rearing of children, thus making of a woman’s body the “body of a mother”. Foucault spent a great deal of time examining the relationship between power and sexuality. “Where there is desire, the power relation is already present: an illusion, then, to denounce this relation for a repression exerted after the event; but vanity as well, to go questing after a desire that is beyond the reach of power.”⁵

It is important to note that Foucault lived during the sexual revolution, when discourses surrounding sex, gender and sexuality began to take shape, and the first gay rights movements were launched. At this point, as a rejoinder to Foucault, it may be useful to quote the words of Chief Justice Warren E. Burger, who as a member of the US Supreme Court ruled in 1986 on the high-profile Bowers vs Hardwick case,⁶ and gave an opinion which can be easily placed in opposition to Foucault’s. He argued that “good governments” have always established rules to regulate sexual behaviour. In the specific case, a gay man was facing a prison sentence on charges of “sodomy”. Dissenting members of the court argued that citizens had the right to be “left alone”. Burger, however, though he did not energetically pursue criminal charges against homosexuals, nevertheless took a different view: he held that to strike off such prohibitions would be to undermine the values which upheld the structure of state legislation, and indeed of American society. “The proscriptions against sodomy have very ancient roots. Decisions of individuals relating to homosexual conduct have been subject to state intervention throughout the history of Western civilisation. Condemnation of those practices is firmly rooted in Judeo-Christian moral and ethical standards. […] To hold that the act of homosexual sodomy is somehow protected as a fundamental right would be to cast aside millennia of moral teaching.”⁷

Over the subsequent decades – at the latest with the Supreme Court’s judgement on the 2003 case of Lawrence vs Texas – “anti-sodomy” legislation has become unconstitutional in the United States. This has not, however, marked an end to the process of radical change in perceptions of gender and sexual identities. This was shown just a few weeks ago, in the case of Bostock vs Clayton County, Georgia, in which the Supreme Court found in relation to a 1964 law that the word “sex” should be understood to include also sexual orientation and different sexual identities, so that the prohibition on discrimination must extend to discrimination on these grounds as well. This decision may open a door to even more profound forms of social change, which are already closely linked to concepts current in gender studies.

In place of an in-depth analysis of gender studies, we shall here limit ourselves to pointing out that gender mainstreaming has, through a series of steps which began in the 1990s, gradually become one of the main policy directives of the EU, usually with reference to the necessity of ensuring equality between men and women. Significant steps were already being taken in 1995, including the establishment of the Santer Commission, with a special working group to promote equal opportunities, and the establishment and adoption of the so-called “Fourth Action Programme on Equal Opportunities”. In February 1996, the Commission issued a formal declaration, committing itself to the promotion of gender equality in all the collective policies of the EU. The most significant steps were brought about through the drafting and ratification of the Treaty of Amsterdam, which – among other things – established that the term “protection of human rights and fundamental freedoms” in Articles 2 and 3 of the Treaty on European Union should be understood as covering equality and “equalisation” between men and women, and the fight against discrimination. While these provisions may not be invoked directly by EU citizens, they must nevertheless be taken into account by all EU decision-making mechanisms. The judgements of the Court of Justice of the European Union in the Marshall and Kalanke cases have also outlined the criteria according to which the European Union and its member states may introduce so-called “positive discrimination” such as gender preferences or even quotas.⁸

At the same time, however, the EU is still struggling to establish clear definitions of “sex” and “gender”, as can be seen in the case law of the Court of Justice of the European Union (CJEU) and the European Court of Human Rights (ECHR). While the EU is not a party to the European Convention of Human Rights, Article 6 of the Treaty on European Union states that the Convention is also part of EU law, so the case law of the ECHR does in practice establish precedents for the case law of the CJEU. In the case of Goodwin vs United Kingdom, for instance, the ECHR found that it was an infringement of human rights to forbid a person who had undergone gender reassignment from marrying someone of the same gender as the plaintiff had been before the operation. Following this judgement, the court sought to separate the concepts of man and woman from that of sex at birth. On this basis, a person’s gender thus becomes a contingent, alterable circumstance, which logically does not even require transformative surgery. What is more, according to the CJEU, legislation passed by a member state which limits the definition of gender to the sex assigned at birth, and provides no means of changing it, thereby infringes upon “the true essence of the right to marry”. The somewhat smile-inducing judgement which attempted to establish the social security situation of a person who had undergone gender reassignment surgery to change from a man to a woman, followed a similar logic. Specifically, the problem was determining whether the retirement age of 65 for men or 60 for women should apply in this case. The court eventually determined that the rules for women should apply. A comparable decision was taken by the CJEU in 2018, when it ruled that it was an infringement of the right to equality to differentiate between two married people in the provision of a state pension – one member of the couple had undergone gender reassignment surgery, while the other had retained their birth sex.⁹

In terms of gender equality, the EU is now the most “progressive” large political actor on the world stage. Certain independent researchers such as Mark A. Pollack and Emilie M. Hafner-Burton¹⁰ have found the EU to be “surprisingly fast and effective” in its implementation of gender policies. The Istanbul Convention, drafted under the auspices of the Council of Europe and ratified by the EU in 2017, is one part of this rapid process, and its ratification and implementation by member states has been listed in the 2020–2025 Action Plan as one of the bloc’s key objectives in the domain of equal opportunities.

 
As can be seen from the brief summary above, the Istanbul Convention should not be viewed in isolation. It forms part of a regulatory trend encompassing a number of Western states, particularly within the EU, where the mainstreaming of gender ideology is carried out through a mix of anti-discrimination activity, regulation, equal opportunities legislation and judicial interpretation of the law. If the Istanbul Convention were to be ratified by all EU member states, it would be elevated to a formal legal status which could make it a form of gender constitution. Thus, the enforcement of progressive gender ideology could be elevated within the EU to a legal principle of states or societal organisations. This, in turn, would present several serious dilemmas:

The Istanbul Convention and its gender-mainstreaming programme are part of an effort to restructure social relations in order to achieve gender equality. In the oft-quoted words of former Danish Environment Minister Lone Dybkjær, in order for women’s rights to be foregrounded from the outset, it is necessary “to reconstruct the entire building”.¹¹ However, as Foucault indicated, this will essentially entail the demolition of old norms, and the establishment of a new set of norms, or as Ursula Schele and Katharina Wulf put it, “a feminist state”.¹²

Translation by Thomas Sneddon