Author: Sofia Sutera
Sofia Sutera holds a PhD from the International Joint PhD Programme in ‘Human Rights, Society, and Multi-level Governance’ hosted by the Human Rights Centre ‘Antonio Papisca’ of the University of Padova, Italy. Her research focuses on Human Rights, International Peace and Security and the Women, Peace and Security Agenda. She earned a Master’s Degree in Law at the University of Padova, Italy and a One Year Master’s Degree in Political Science: Global Politics and Societal Change at the University of Malmö, Sweden. She is currently working at the University of Padua.
Introduction
It is now getting viral a TV series based on Naomi Alderman’s 2016 novel ‘The Power’ which, as has already happened thanks to the well-known series based on the 1985 ‘The Handmaid’s Tale’ by Margaret Atwood, is both cause and effect of a very global debate on gender equality. In fact, there is now an increasing backlash against gender equality which is spreading both at the national and international level.
Considering that in the very Nordic countries, celebrated for their gender equal societies (see their Gender Equality Index[i]), and particularly in Oslo, Norway, two people were shot dead and 26 were injured during last summer’s Pride[ii], it is easy to understand that this global trend is a major threat to women’s and LGBTIQ+ individuals’ human rights. This article, thus, wants to reflect on the opposition which has developed to the emerging definition of gender, especially within the international legal context, and the subsequent increased opposition to the very idea of gender equality. In order to observe the consequences of these forms of reaction, this article explicitly takes into consideration the European example.
Defining gender
It is, at this point, necessary to understand what is meant by the very term gender, in this sense the World Health Organization (WHO) has clearly specified that:
Gender refers to the characteristics of women, men, girls and boys that are socially constructed. This includes norms, behaviours and roles associated with being a woman, man, girl or boy, as well as relationships with each other. As a social construct, gender varies from society to society and can change over time (WHO 2023)[iii].
Still, the definition of gender remains highly debated.
The concept of gender was developed among feminist scholars in the 1970s when it emerged as a reaction to the opposite and prevailing perspective of biological determinism, which focused on the acknowledgement of innate and invariable biological differences between women and men[iv]. Thus, gender is a concept referring to the social norms, roles, and expectations which shape what we define as masculinity and femininity[v]; on the contrary, sex refers to biological differences. Accordingly, gender inequality is considered to be a social construction which depends on power imbalances in the societal context, and which can be eliminated.
Further, in the 1990s, the discussion on gender was expanded by the contributions of two important perspectives. The intersectionality perspective[vi] shifted the attention to a comprehensive analysis of the various and crossing dimensions of oppression, such as sex, gender, class, race, sexuality, ethnicity, and disability, and thus to the many and different experiences of the very idea of gender that individuals concretely have. The Queer theory[vii] contested the conventional binary understanding of gender, the sex/gender dichotomy, and the implicit heteronormative assumptions[viii].
A legal history of gender
In the 1990s, in the UN documents there was a first shift from ‘women’ to ‘gender’ in recognition of the fact that also men needed to be involved in order to reach gender equality[ix], thus the term ‘gender’ appeared in international human rights law. In 1992, the Committee on the Elimination of All Forms of Discrimination against Women (the CEDAW Committee) made use of the expression ‘gender-based violence’ in its General Recommendation no 19. on violence against women. Then, the Vienna Declaration and Programme for Action (1993) and the International Conference on Population and Development Programme of Action (1994) made explicit references to the term, but without defining it. A significant opposition to the use of the term was guided by the Holy See, which insisted that gender was ‘grounded in biological sexual identity, male or female’.[x] Indeed, the Holy See was concerned that seeing ‘male’ and ‘female’ as socially constructed categories would lead to the possibility of unlimited different and fluid sexuality identities not confined by biological constraints, which ‘can be adapted indefinitely to suit new and different purposes’ of different ideologies[xi]
During the negotiations on the Statute of the International Criminal Court (the Rome Statute) the concept of gender was finally defined, in accordance with the principle of legal certainty in criminal law, as ‘the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above’. The choice of this ‘constructive ambiguity’ was then exploited by the conservative alliance led by the Holy See, for instance during the negotiations on the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence (Istanbul Convention), to argue that at the international level, gender was interpreted as being based on innate biological sex.[xii] In 2011, though, the term was given the first explicit definition in the Istanbul Convention, Article 3 as ‘the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men.’[xiii]
Oppositions to gender
While anti-gender campaigns have been organised at least since the 1990s, that is as soon as the term gender has been introduced in the UN, initially they remained relegated at the level of international negotiations about new norms and theological discourses[xiv]. Only in the 2010s did trans-national movements start organising around the common theme of fighting ‘gender ideology’, considered to be an instrument for ‘an ideological colonisation’ aimed at destroying the traditional family and family values. Emerging first in Europe and then in Latin America, these movements, made up of governmental, religious, and civil society actors, assisted by national and transnational alliances, brought an attack on women’s and LGBTIQ+ rights, in particular in relation to Sexual and Reproductive Health and Rights (SRHR).[xv]
In particular, the term ‘gender ideology’ or ‘gender theory’ was first introduced by the Catholic Church as a reaction to the 1994 International Conference on Population and Development in Cairo and the 1995 Fourth International Women’s Conference in Beijing. In fact, the conclusions of the two conferences, explicitly recognising that reproductive health is fundamental for sustainable development, were unwelcomed by the Vatican, which described ‘gender theory’ as a political project of feminists, LGBTIQ+ activists, and gender studies scholars[xvi]. In 2001, John Paul II declared that ‘misleading concepts concerning sexuality and the dignity and mission of the woman’ are due to ‘specific ideologies on gender’[xvii]aimed at deconstructing sex differences and the traditional notion of family. Indeed, John Paul II’s theology of difference and complementarity of sexes[xviii], also supported by Popes Benedict XVI and Francis, represented women and men as human beings who, while being equal in dignity, perform different but complementary roles in life. Already Pope Paul VI, reacting to what he saw as a dangerous trend of the times, reinforced in his statements the Catholic Church’s opposition to contraception (Humanae Vitae 1968), homosexuality (Persona Humana 1975) and the ordination of women (Inter Insigniores 1976)[xix]. Having seen also the work Mulieris Dignitatem of John Paul II (1988), Benedict XVI expressed various concerns about feminism, new reproductive technologies, and the LGBTIQ+, already mentioned in his Report on faith in 1985, building the notion of human ecology at risk of destruction by the gender movement[xx].
Gender ideology thus became a ‘theoretical-political knot – exemplary, essential and deadly – around which contemporary democracies have built an ideological order without religion and sometimes even against religion’; in fact, the foundations of democratic reason are no longer derived from the transcendence of an inviolable nature created by God.[xxi] Indeed, this ideology is considered to be an explicit manifestation of the destructive action of the principles of freedom and justice which not only bring to adding new rights, especially in the sense of new women’s rights, but to a radically different reinterpretation even of existing rights:[xxii] sex, gender and sexuality become the object of public policies and become objects of debate and subject to change.[xxiii] Thus, ‘human rights lose their dimension of abstract universality and are declined into subjective rights’, being defined according to the social categories of gender and sexuality which, according to the Church, brings to a proliferation of a multiplicity of new rights, often in opposition to each other[xxiv]. In fact, for the Catholic Church, human rights are universal and objective insofar as they are rooted in an objective nature created by God; therefore, they can ignore the social dimension of reality and transcend its fragmentation and particularity. On the contrary, the new human rights are anchored in the social and historical dimension of situations they are meant to regulate and introduce a principle of autonomy that contradicts the aspiration to the transcendence of human nature.[xxv] Finally, these new human rights also transform the practice of law itself: at least theoretically, the law of new human rights is co-produced by different subjects through negotiations, conflicts, and interactions with the legislator.[xxvi]
In the subsequent years, though, the ‘gender ideology’ discourse has become the defining mark of various actors, ‘many of which are not affiliated or even sympathetic to the Catholic Church’[xxvii]. Particularly important is the role played by the World Congress of Families, founded in 1995 and later renamed as the International Organization for the Family (IOF), which is based in the US and is one of the leading global anti-SRHR organisations. The IOF organises the annual World Congress of Families (WCF), an international conference seeking ‘to defend the natural family as the only fundamental and sustainable unit of society’ [xxviii]. So far, it has organised thirteen international conferences and dozens of regional ones; the thirteenth conference was held in Verona, Italy, in March 2019, where the speakers included the then-deputy prime minister of Italy and head of the Lega party, Matteo Salvini. and the Hungarian Minister for Family and Youth Affairs, Katalin Novak.
Oppositions to gender equality
In 2018, the Working Group on Discrimination Against Women and Girls (WGDAWG)[xxix] denounced ‘the increasing attacks against the universality of women’s human rights’[xxx] (as expressed also by the UN Human Rights Council in its resolution 35/18)[xxxi]. It argued that ‘the concept of gender itself has been challenged, misunderstood and misused to further undermine the struggle towards the elimination of discrimination against women and towards gender equality’ by conservative lobbies, which interpret efforts in favour of gender equality as attempts to demolish institutions such as the family, marriage and religious freedom[xxxii]. In this alarming context, the Working Group has mainly observed that notions such as ‘complementarity’, ‘equity’ and ‘protection of the family’ are increasingly used to question universal human rights to equality and non-discrimination, especially in regard to SRHR[xxxiii]. Likewise, a recent analysis requested by the European Parliament outlined a general backlash in gender equality and women’s human rights[xxxiv], represented by acts such as sexist hate speech, misogyny and online violence but it also reported an increased opposition against the Istanbul Convention. Recently, the WGDAWG has witnessed the emergence of campaigns and legislative proposals to restrict or ban abortion, objection to gender equality education and sexuality education. All of these are highly concerning developments considering that in June 2021, the European Parliament adopted a resolution which states that acts which hinder access to contraception, fertility treatment, maternity care and abortion ‘constitute breaches of human rights’[xxxv].
In her study on anti-gender mobilisations in Europe, Zacharenko observes that while in the previous edition of the same study opposition to gender equality appeared as a new trend in mainstream EU politics, in the last analysis it represented ‘one of the central features of the political landscape’[xxxvi]. Indeed, the 2019 elections to the European Parliament showed an increase in the number of parliamentarians opposing SRHR as a consequence of the victories of far-right and nationalist parties[xxxvii]. Not only have some member states vetoed the adoption of Council Conclusions which include the term ‘gender’, but even the EU’s ratification of the Istanbul Convention, signed in June 2017, is stalled in the Council[xxxviii], being contested for its acknowledgement of the term ‘gender’ and its explicit reference to the prohibition of discrimination on the basis of ‘gender identity’[xxxix]. The ratification process of the Istanbul Convention is gradually slowing down or even going backwards: as a matter of fact, six EU member states (Bulgaria, the Czech Republic, Hungary, Latvia, Lithuania and Slovakia) are yet to ratify it. While the Bulgarian and Slovakian governments in 2018 and Hungary in 2020 explicitly refused to ratify it, in July 2020, the Polish Minister of Justice announced that Poland would officially apply to withdraw from the Convention, due to the Convention’s ‘ “harmful” requirement to teach gender from a sociological point of view’ [xl]. Outside of the EU, in Turkey, the first State to sign the convention, President Erdoğan announced on 20 March 2021 his country’s withdrawal from the Convention by a presidential decree in force as of July 2021[xli]. In May 2021, pressure from Poland and Hungary led to the elimination of the phrase ‘gender equality’ from a declaration on advancing social cohesion in the EU and reducing social and economic inequalities worsened by the COVID-19 pandemic[xlii].. In fact, ‘[a]ttacking the term gender is a strategy widely applied by anti-human rights actors to undermine advancements of women’s rights, sexual and reproductive rights and LGBTIQ+ rights’[xliii]. Arriving at the EU meeting, the Hungarian President Orbán explained that he was against speaking of ‘gender’, which he considered an ‘ideologically motivated expression’[xliv].
Further, in June 2021, the Vatican has formally asked the Italian Government to modify the bill against homo- and transphobia (known as the Zan bill) because it would violate some aspects of the Lateran Treaty which regulates the relations between the Italian State and the Catholic Church, and would directly attack the ‘freedom of thought’ of the Catholic community[xlv]. The Italian Prime Minister Draghi replied that the Italian State is a secular state, not confessional, and that, therefore, the parliament is free to discuss and legislate without any external interference, even if secularism is not meant to indicate an indifference of the State towards the religious phenomenon, but rather a way to protect pluralism and cultural diversity[xlvi]. Additionally, considering the law just approved by the Hungarian Parliament in June 2021 which clearly discriminates based on sexual orientation, Draghi reiterated the position of the Italian Government underlying that Italy signed in the same month with other 16 European countries a statement expressing deep concern about the new law. Indeed, this bill, which makes it illegal to portray homosexuality and sex reassignment in school education material and television programmes targeted at people under the age of 18, has been strongly condemned by European Commission President Ursula von der Leyen. On the contrary, its adoption is defended by the Hungarian Government, which argues that this law primarily targets paedophilia. In fact, the conflation between the LGBTIQ+ community and paedophiles has been harshly denounced by human rights experts and civil society for perpetuating damaging stereotypes[xlvii].
Conclusion
The very concept of gender equality has become increasingly contested within this overall rise of anti-gender movements[xlviii]. Indeed, even the Istanbul Convention has been attacked by anti-gender activists as an explicit representation of ‘gender ideology’, threatening the traditional division of roles between women and men[xlix].
Still, considering that the European Parliament in February 2019 adopted a resolution which explicitly condemns ‘the backlash on women’s rights and gender equality in the EU’[l], it is necessary to bear in mind that ‘[t]imes of crisis provide a risk but also an opportunity to redraw the social contract and present a vision of a society, which provides social and economic protection for all’[li]. Indeed, as Kantola and Lombardo[lii] point out, gender equality could actually benefit from becoming an increasingly politicised issue, possibly by means of respectful confrontations where arguments in favour of and against gender equality would result in being more explicit and direct opposition being actively discussed and addressed.
Still, considering also the infringement procedures adopted by the European Commission in 2021 against Hungary and Poland for breaching LGBTIQ+ rights[liii] and the recent legal action launched by the European Commission against Hungary at the European Court of Justice[liv], we need to reflect on the statement of the European Commission President von der Leyen in relation to the law adopted in Hungary. Indeed, these explicit words are a clear remark of the values on which the European Union is founded:
This Hungarian bill is a shame. This bill clearly discriminates against people on the basis of their sexual orientation and it goes against all the fundamental values of the European Union. This is human dignity, it is equality and it’s the human fundamental rights. So we will not compromise on these principles[lv].
[i] Gender Equality Index 2022 (2023) < https://eige.europa.eu/news/gender-equality-index-2022-gender-equality-under-threat-specific-groups-hardest-hit#:~:text=The%20freshly%20launched%20Gender%20Equality,points%20higher%20than%20in%202010> accessed 1 May 2023
[ii] Nordic Co-Operation, Opposition to gender equality is well organised (2022) < https://www.norden.org/en/news/opposition-gender-equality-well-organised> accessed 1 May 2023
[iii] WHO, Gender and health (2023) < https://www.who.int/health-topics/gender#tab=tab_1> accessed 3 January 2023
[iv] Marija Antić and Ivana Radačić, ‘The evolving understanding of gender in international law and “gender Ideology” pushback 25 years since the Beijing conference on women’ (2020) Women’s Studies International Forum, 1.
[v]See for instance Kate Millett’s Sexual Politics, 1970 and Ann Oakley’s Sex, Gender and Society, 1972.
[vi]”; Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ (1989) University of Chicago Legal Forum 139, 139.
[vii]; Ivana Radačić and Alda Facio, Mandate of the Working Group on discrimination against women and girls, Gender equality and gender backlash (OHCR 2020) 2.
[viii] Ibid.
[ix]Raewyn Connell, Gender in world perspective. Cambridge: Polity Press(2009).
[x] Elena Zacharenko, Anti-gender mobilisations in Europe, Study for policy makers on opposition to sexual and reproductive health and rights (SRHR) in European institutions (2020) 3 <https://heidihautala.fi/wp-content/uploads/2020/12/Anti-gender-Mobilisations-in-Europe_Nov25.pdf> accessed 28 June 2021
[xi] Doris E. Buss ‘Robes, Relics and Rights: the Vatican and the Beijing Conference on Women’ (1998)
Social & Legal Studies, 339 as cited in Marija Antić and Ivana Radačić, ‘The evolving understanding of gender in international law and “gender Ideology” pushback 25 years since the Beijing conference on women’ (2020) Women’s Studies International Forum 1, 2.
[xii] Marija Antić and Ivana Radačić [3].
[xiii], UNHCR Report of the Working Group on the issue of discrimination against women in law and in practice (18 June–6 July 2018) UN Doc A/HRC/38/46, 5.
[xiv]; Anne Jenichen, Jutta Joachim and Andrea Schneiker ‘“Gendering” European Security: Policy Changes, Reform Coalitions and Opposition in the OSCE’ (2018) European Security 1, 22-23.
[xv] Ivana Radačić and Alda Facio [7].
[xvi] Elena Zacharenko [12].
[xvii] Elizabeth Corredor ‘Unpacking “gender ideology” and the global right’s antigender countermovement’ (2019) Signs: Journal of Women in Culture and Society 613, 615
[xviii] Marija Antić and Ivana Radačić [5].
[xix] Massimo Prearo L’ ipotesi neocattolica. Politologia dei movimenti anti-gender (Mimesis 2020) 41.
[xx] Ibid [41].
[xxi] Ibid [45]. Translation by the author of this paper.
[xxii] Ibid [49].
[xxiii] Ibid [54].
[xxiv] Ibid [69-70]. Translation by the author of this paper.
[xxv] Ibid [71-77].
[xxvi] Ibid [82].
[xxvii] Elena Zacharenko [12].
[xxviii] Massimo Prearo [12]. Translation by the author of this paper.
[xxx] UNHCR Report of the Working Group on the issue of discrimination against women in law and in practice (18 June–6 July 2018) UN Doc A/HRC/38/46, 1.
[xxxi] Ibid [11].
[xxxii] Ibid [4].
[xxxiii] UNHCR Report of the Working Group on the issue of discrimination against women in law and in practice (18 June–6 July 2018) UN Doc A/HRC/38/46, 8.
[xxxiv] Borbála Juhász and Enikő Pap, Backlash in Gender Equality and Women’s and Girls’ Rights (Europarl 2018) 8.
[xxxv] Maïa De La Baume ‘European Parliament declares abortion access a human right’ (POLITICO 24 June 2021) < https://www.politico.eu/article/meps-adopt-divisive-text-on-abortion/> accessed 28 June 2021.
[xxxvi] Elena Zacharenko [16].
[xxxvii]Heidi Hautala, Foreword from MEP, in Elena Zacharenko [5].
[xxxviii] Ibid [7].
[xxxix]”; Marija Antić and Ivana Radačić, [4].
[xl] Ibid [21].
[xli] International Commission of Jurists ‘Turkey’s withdrawal from Istanbul Convention a setback for women and girls’ human rights’ (01 July 2021) < https://www.icj.org/turkeys-withdrawal-from-istanbul-convention-a-setback-for-women-and-girls-human-rights/> accessed 09 May 2023
[xlii]Gabriela Baczynska ‘Poland, Hungary block “gender equality” from EU social summit’ (REUTERS 7 May 2021) < https://www.reuters.com/world/europe/poland-hungary-push-against-gender-equality-eu-social-summit-2021-05-07/> accessed 28 June 2021.
[xliii] Ibid.
[xliv] Ibid.
[xlv] Giovanni Viafora ‘Vaticano contro il ddl Zan: «Fermate la legge, viola il Concordato»’ (CORRIERE DELLA SERA 22 June 2021) < https://www.corriere.it/cronache/21_giugno_22/vaticano-ddl-zan-legge-testo-b13294ba-d2d0-11eb-9207-8df97caf9553.shtml> accessed 28 June 2021
[xlvi] LA STAMPA ‘Draghi replica al Vaticano sul Ddl Zan: “Il nostro è uno Stato laico, a tutela di pluralismo e diversità culturali”’ (LA STAMPA 23 June 2021) < https://www.lastampa.it/politica/2021/06/23/news/draghi-al-senato-green-pass-gia-scaricato-da-5-milioni-di-italiani-1.40422009> accessed 28 June 2021
[xlvii] Euronews ‘Hungary’s anti-LGBT law is a ‘shame’ says Ursula von der Leyen’ (Euronews 23 June 2021) < https://www.euronews.com/2021/06/23/hungary-s-anti-lgbt-law-is-a-shame-says-ursula-von-der-leyen> accessed 28 June 2021
[xlviii] Marija Antić and Ivana Radačić [3].
[xlix] Valentine Berthet (she/her/hers) ‘Norm under fire: support for and opposition to the European Union’s ratification of the Istanbul Convention in the European Parliament, International Feminist Journal of Politics’ (2022), 24:5, 675-698, DOI: 10.1080/14616742.2022.2034510, 676
[l] European Parliament resolution of 13 February 2019 on experiencing a backlash in women’s rights and gender equality in the EU (2018/2684(RSP) https://www.europarl.europa.eu/doceo/document/TA-8-2019-0111_EN.html accessed 28 June 2021.
[li] Ibid [25].
[lii] Johanna Kantola and Emanuela Lombardo, ‘Strategies of right populists in opposing gender equality in a polarized European Parliament’ (2020) International Political Science Review 1, 13.
[liii] See:< https://lgbti-ep.eu/2021/07/15/press-release-european-commission-launches-3-infringement-procedures-against-hungary-and-poland-on-lgbtiq-issues/> accessed 4 January 2023.
[liv] See: < https://theconversation.com/eu-sues-hungary-over-anti-gay-law-what-it-could-mean-for-lgbt-rights-in-europe-187209> accessed 4 January 2023.
[lv] Euronews ‘Hungary’s anti-LGBT law is a ‘shame’ says Ursula von der Leyen’ (Euronews 23 June 2021) < https://www.euronews.com/2021/06/23/hungary-s-anti-lgbt-law-is-a-shame-says-ursula-von-der-leyen> accessed 28 June 2021
