Gesine Fuchs

Using strategic litigation for women’s rights: Political restrictions in Poland and achievements of the women’s movement

Legal mobilization in the courts and in political discourse has emerged as an increasingly important strategy of social movements that complements other political approaches. This is true also for women’s movements in post-socialist countries, but most research on strategic litigation has focused so far on common law countries and on supranational litigation in Europe. Using the case of Poland as an example, this article asks why references to the law are so attractive in post-socialist contexts and what can be gained by this with respect to actual rights, justice and social change. It focuses thereby on strategic litigation as the most sophisticated strategy that results from other sustained movement activities connected with the law. It draws on field research, interviews with activists and analyses of primary as well as secondary sources. The article explores the reasons for using the law as the ‘master frame’ by analysing the traditions of gender and law in state socialism and during democratic consolidation. Two examples of strategic litigation, the Tysiąc case for reproductive rights and the ‘Biedronka’ cases for employment rights, are analysed and situated in the context of other legal mobilization activities. These cases set the agenda for crucial social problems and resulted in binding decisions by the courts. A broad and predominantly supportive media discourse was conducive to cultivating public opinion. These analyses support the conclusion that legal mobilization tends to directly influence law and legal practices. It has a socializing effect on the population and their legal consciousness. In aiming at both state and society, these legal strategies of the women’s movement are a modest but crucial success for democratic consolidation.

Discursive Opportunity Structures and Legal Mobilization for Gender Equality in Four Countries 1996-2006

Legal mobilization in the courts and in political discourse has emerged as an increasingly important strategy of social movements that complements other political approaches. While strategic litigation is quite popular in some countries, movement actors in others have remained sceptical about the transformative potential of jurisdiction for structural problems. Which structural-institutional and socio-political factors can account for the different level of legal mobilization by social movements? Can legal mobilization contribute to social change? The paper looks into these questions by examining the extent and nature of strategic litigation for pay equity in four European civil law countries (Switzerland, Germany, France, and Poland). The central hypothesis is that different legal opportunity structures (material and procedural law, case law) and different discursive opportunity structures (values, norms and institutions that organize the discourse) affect different patterns of legal mobilization. Conducive legal opportunity structures (LOS) are a crucial precondition for mobilization and they are the result of past political conflict and historical developments. Where legal opportunity structures are inhibiting or negative, legal mobilization may nevertheless happen, if discursive and political opportunity structures are favourable and if scandalous cases are available. Discursive opportunity structures (DOS) are more diverse and multilayered. The paper looks into two aspects of DOS: mass media coverage and organizational features of DOS. Mass media coverage varies strongly between the countries and movement actors do not have much voice in it. Perceptions and experiences in organizations on gender equality are even more diverse, and strongly influence whether legal mobilization is seen as valuable strategy. Data comes from a research project, including court decisions, media discourse analysis and 60 interviews with activists and lawyers.

Political Representation of Women in Europe. What Accounts for the Increase in the 2000s

In the last 15 years, political representation of women both in parliaments and in governments in Europe has increased. Interestingly, increases occurred in countries with legislated gender quotas, but also in states where softer voluntary party quotas exist as well as with parties that do not have any formal quota. How can we account for this improvement? Feminist political research has argued that a comprehensive model of explanation is needed that takes into account social structures as well as norms and institutions. However, the causal relations and differentiated influences are far from clear. This paper takes this “magic triangle” as a starting point and uses comparative data for all three kinds of factors to search for causal relationships with the development of female representation in national parliaments. We apply regression analysis, explorative clustering and fuzzy-set Qualitative Comparative Analysis (fzQCA). Consistent results obtained from all methods applied include the complementarity of legislated gender quotas, on the one hand, and voluntary quotas with good electoral proportionality, on the other hand. Socio-economic data had no reasonable impact on women’s representation in Europe. Political culture, like the tradition of universal female suffrage, proved to be sometimes relevant. However, we need better qualitative and quantitative data for political culture for further investigations.

Komplexe Wechselbeziehungen: Geschlechterpolitik in Osteuropa

Zusammenfassung 25 Jahre nach Beginn der demokratischen Transformationen in Osteuropa sind wir mit ambivalenten Ergebnissen in Bezug auf die Geschlechterverhaltnisse konfrontiert. Demokratisierung war nicht gleichbedeutend mit Geschlechterdemokratie, der Ubergang zur „freien“ Marktwirtschaft kein Aquivalent zur okonomischen Gleichstellung der Geschlechter. Die Einleitung zum Schwerpunktheft gibt einen Forschungsuberblick uber neue Erkenntnisse zu den Geschlechterverhaltnissen in den ostlichen Mitgliedsstaaten der EU. Hierbei werden insbesondere die Wirkungen der EU auf die Geschlechterpolitik Mittelosteuropas diskutiert und zwei Felder, Sozialpolitik und die Bekampfung hauslicher Gewalt, herausgegriffen. Die strukturellen Wirkungen des EU-Mandats in der Gleichstellungspolitik werden in bezug auf Gleichstellungsinstitutionen und NGOs beleuchtet. Schlieslich zeigt ein Blick auf die Ukraine exemplarisch den widerspruchlichen Charakter der Geschlechterverhaltnisse in Bezug auf Frauenrollen, Sozialpolitik und weiblichem Aktivismus. Die Einleitung schliest mit Uberlegungen fur kunftige Forschung und in Bezug auf politischen Handlungsbedarf, welcher die Gleichstellung der Geschlechter voranbringen konnte. ----- Introduction: Complex Interrelations of Gender Politics in Eastern Europe Abstract Following 25 years of democratic transformation in Eastern Europe, we are still confronted with ambiguous results regarding gender relations. Democratisation was neither synonymous with gender democracy, nor did the transition to a „free“ market economy produce economic gender equality. This introduction to our special issues surveys new research on gender relations in the Eastern member states of the European Union. We then evaluate the structural impact of EU mandates in these domains, i. e., on the architecture of Women’s Policy Agencies and on the role of women’s Non-Governmental Organisations (NGOs). We present a case study on gender developments in Ukraine as a non-member state to further illustrate the contradictory nature of evolving gender relations in the region as regards women’s roles, social policies and female activism. The introduction closes with reflections on the types of research and political activities that could further the pursuit of gender equality. ----- Bibliographie: Fuchs, Gesine/Hinterhuber, Eva Maria: Komplexe Wechselbeziehungen: Geschlechterpolitik in Osteuropa, FEMINA POLITICA, 2-2015, S. 9-28. http://dx.doi.org/10.3224/feminapolitica.v24i2.20973

Promising Paths to Pay Equity: A Comparison of the Potentials of Strategic Litigation, Collective Bargaining and Anti-Discrimination Authorities in Switzerland, Germany and France

The gender pay gap in Europe is between 15% and 25%, and is narrowing only slowly. This poses a considerable challenge for gender equality – a core value of modernity and democracy. Three routes to reducing this gap are discussed: strategic litigation, collective bargaining and anti-discrimination authorities. EU law has been crucial for comprehensive national pay equality legislation. Recent directives have led to new anti-discrimination authorities that can investigate claims, support victims and make policy recommendations. Yet the implementation ranges from very weak to quite strong, according to different ‘worlds of compliance’ (Falkner/Treib). What have these institutions achieve to date? And how do they interact with the agenda setting and the actual pay equity policies of women’s organizations and trade unions? Like social movements in general, who have recently been framing their demands for social justice in terms of rights and the law, some women’s organizations and trade unions have also been using strategic litigation before national and European courts to further their aims. Yet many have remained sceptical about the transformative potential of jurisdiction (jurisprudence) for structural problems. Gender Mainstreaming of collective agreements has emerged as a new policy strategy of women’s trade union departments, but met with resistance from both employers and vested male union interests. Which policy is most promising in bringing about pay equity? National institutional settings, traditions and welfare regimes substantially influence actors’ strategic choices. Although every approach has certain pitfalls and some potential, the mobilization of discourses of law and rights seems crucial for any progress towards pay equity. The paper is based on comparative research in three countries – Switzerland, Germany, and France . Data includes media analysis, interviews and court decisions.