Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Regulating the human body in sports: Lessons learned from the Dutee Chand case - by Dr Marjolaine Viret & Emily Wisnosky

Editor's note: Marjolaine Viret and Emily Wisnosky are both editors of the ASSER International Sports Law Blog specialized in anti-doping matters, they are also involved in the World Anti-Doping Commentary project funded by the Swiss National Science Fund.

Introduction

A remarkable aspect of the run-up to the 2016 Rio Olympic Games was the stream of negative media reports portraying broad-scale public mistrust in sport, with the most prominent topic being the doping scandals in athletics and questions surrounding the participation of Russia.  

A different controversy, but one also directed at the credibility of sports, has exposed a few female Olympians to repeated, and at times rather intrusive, media scrutiny. In June 2016, it was reported that Indian track-and-field athlete Dutee Chand had qualified for the Rio Olympic Games by breaking the national record, thus to become the first Indian athlete to run the 100m at the Olympics since 1980. The attention that Dutee Chand’s qualification attracted within international media, however, was not related only to her outstanding results. It came as part of a medical, ethical and legal controversy that has existed for many years relating to ‘policing’ the male versus female divide in sports. Another athlete who has found herself in the midst of this controversy is South African runner Semenya Caster, whose participation in the Olympics has been the object of much conjecture.

The divide between male and female athletes forms the core of most sports’ competition rules, including athletics. The justification for this basic divide has rarely been questioned as such, but has been a matter for debate when it comes to handling atypical situations on both sides of the ‘dividing line’ ­ such as ‘transgender’ or ‘intersex’ athletes. A category of athletes that has, especially, been viewed as a challenge to the divide is composed of female athletes affected by ‘hyperandrogenism’, a health condition that results in naturally elevated androgen levels, including testosterone levels.

On 24 July 2015, a CAS panel rendered a decision involving Dutee Chand (“Dutee Chand” or “the Athlete”) that has fuelled the ongoing debate about the policies regulating hyperandrogenism in sport. Much has been reported in the media about the case: controversial issues include whether the CAS was the appropriate forum to assess these questions; whether the decision was appropriate, both on the merits and on the procedure; and what the consequences of the CAS award would be, for the parties, for athletics and for the sporting community at large.

Much like the current crisis surrounding doping in sports, the public attention on women with (proven or suspected) hyperandrogenism is driven by a concern that an athlete’s physiology – natural or artificially induced ­ could distort competition, destroying the ‘level playing field’ that supports the Olympic ideal. Both topics are also often brought back to the goal of protecting an athlete’s health. Parallels are further found in the strong reactions both topics evoke, and the steps taken by the regulating authorities to convince the public that everything in their power is being done to preserve a level playing field.

A less obvious but equally important point of comparison can be found in the issues both topics raise concerning the legal validity of decisions made by sports organizations, especially in a science-related context. This blog focuses on those more ‘legal’ aspects, through the prism of the decision of the CAS in the Dutee Chand matter and its legal implications. After touching briefly on the background of the case, we will comment on two aspects of the Chand award with respect to challenges in regulating hyperandrogenism in sport within the confines of the law: First from the viewpoint of a CAS panel called upon to evaluate the validity of a set of regulations, and second from the viewpoint of the sports organizations seeking to both adequately protect fairness in sport and to provide a legally valid (and effective) regulatory solution.[1]

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International and European Sports Law – Monthly Report – July 2016 - By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we have overlooked. 

The Headlines

The McLaren Report on Russia’s State Doping System

It is difficult not to start this monthly report without referring to the never-ending Russian doping investigation that is shaking the sporting world. On 18 July, the independent investigation on Sochi 2014 winter Olympics led by Prof. McLaren, a Canadian law professor, and requested by the World Anti-Doping Agency (“WADA”), released its report. It confirmed evidence of widespread, State-sponsored doping in Russian sports and called for a full ban on the country from the next Rio Olympics. In response to the report, the International Olympic Committee (“IOC”) vowed to take the “toughest sanctions available”. However, and despite the race against time in the run-up to Rio 2016, the IOC delayed its decision for several days amid a WADA statement and several press articles calling for a ban of Russia from Rio Olympics. Meanwhile, it did open an investigation against Russia’s sports minister, Vitaly Mutko, the head official who allegedly supervised the overall doping cover up and explored all possible legal actions against Russia. On 21 July, the Court of Arbitration for Sport (“CAS”) rejected the appeal of the Russian Olympic Committee and 68 Russian athletes against the International Association of Athletics Federations (“IAAF”) decisions to suspend All Russia Athletics Federation (ARAF) from IAAF membership given the evidence of a state-sponsored doping system. As a consequence, Russian track and field athletes were also banned from Rio 2016 Olympics. With the IAAF welcoming this decision, one could think that nothing was standing in the way of a full Olympic ban for all Russian athletes. While some Russian athletes announced that they would appeal the CAS award to the Swiss Federal Court. Yelena Isinbayeva, the banned pole vault champion, even took it a step further by claiming that she would challenge the IAAF decision as far as the European Court of Human Rights. Yet, it is very improbable that any of these challenges be decided in time for the Rio Games.More...

Brexit and EU law: Beyond the Premier League (Part 2). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre. 


Part 2. EU competition law and sports funding

The first analysed impact of Brexit on sport was the one regarding EU internal market rules and free movement. However, all sport areas that are of interest to the European Union will be impacted by the result of the future Brexit negotiations. This second part of the blog will focus on EU competition law and the media sector as well as direct funding opportunities keeping in mind that if the UK reaches for an EEA type agreement competition law and state aid rules will remain applicable as much as the funding programs.  More...


With or without them? Russia’s state doping system and the Olympic fate of Russian athletes. By Antoine Duval, Kester Mekenkamp and Oskar van Maren

On Monday 18 July 2016, Canadian lawyer Richard McLaren presented the Independent Person Report to the World Anti-Doping Agency (WADA), regarding the alleged Russian doping program surrounding the 2014 Sochi Winter Olympics. The report was expected to seriously threaten the participation of Russian Athletes to the rapidly approaching Rio Games, starting on 5 August. In the weekend prior to the report’s publishing, Reuters obtained a leaked letter drafted by the CEO’s of the US and Canadian anti-doping agencies, which according to the New York Times was backed by “antidoping officials from at least 10 nations— including those in the United States, Germany, Spain, Japan, Switzerland and Canada — and 20 athlete groups”, urging the International Olympic Committee (IOC) to ban all Russian athletes from the upcoming Olympics.

Source: http://ww4.hdnux.com/photos/50/23/01/10563667/3/920x920.jpg

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Brexit and EU law: Beyond the Premier League (Part 1). By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

The result of the Brexit referendum on 23 June 2016 took the European Union (almost) by surprise. A lot has been said and written about the impact of the United Kingdom leaving the EU. As in all other areas, the British sport sector will also face the effects of the modification of the relationship between the EU and its (probable) former Member State, the UK. It is nearly impossible to foresee all consequences as the UK has not even triggered article 50 TFEU yet to officially start the exit negotiations. However, as the UK position toward the EU will change in any case, this two-part blog aims to examine the main practical implications of such an exit for the UK, but also for the EU, in relation to the actual application of EU law in sport and the EU sport policy.

Unless stated otherwise, the use of the terms Brexit in this blog should be understood as a complete exit of the UK from the European Union. This blog focus in particular on this worst case scenario and its consequences for UK sport. However, it is highly improbable that the future Brexit negotiations with the EU will end up without some kind of special agreement between the two parties the first of which being an EEA type of agreement with full access to the internal market and applicability of EU law. 

The first part of this blog will examined the consequences for UK sport in terms of access to the EU internal market and the applicability of free movement principles. The second part is focused on specific impacts with regard of others domain of EU law for professional and grassroots UK sport.  More...

International and European Sports Law – Monthly Report – June 2016. By Kester Mekenkamp

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.   


The headlines

What a month June turned out to be. Waking up the morning after the 23rd, the results of the UK referendum on EU membership were final. The words of Mark Twain: “Apparently there is nothing that cannot happen today”, might provide the most apt description of the mood felt at the time.[1] The Leave campaign’s narrow victory has brought along tremendous economic, political and legal uncertainties for both the UK and the (other) Member States. To give but one example, with regard to the implications of Brexit on Europe’s most profiting football league, we recommend an older blog by Daniel Geey and Jonny Madill. More...


The EU State aid and sport saga: The Showdown

It’s been a long wait, but they’re finally here! On Monday, the European Commission released its decisions regarding State aid to seven Spanish professional football clubs (Real Madrid on two occasions) and five Dutch professional football clubs. The decisions mark the end of the formal investigations, which were opened in 2013. The Commission decided as follows: no State aid to PSV Eindhoven (1); compatible aid to the Dutch clubs FC Den Bosch, MVV Maastricht, NEC Nijmegen and Willem II (2); and incompatible aid granted to the Spanish football clubs Real Madrid, FC Barcelona, Valencia CF, Athletic Bilbao, Atlético Osasuna, Elche and Hércules (3). 

The recovery decisions in particular are truly historic. The rules on State aid have existed since the foundation of the European Economic Community in 1958, but it is the very first time that professional football clubs have been ordered to repay aid received from (local) public authorities.[1] In a way, these decisions complete a development set in motion with the Walrave and Koch ruling of 1974, where the CJEU held that professional sporting activity, and therefore also football, is subject to EU law. The landmark Bosman case of 1995 proved to be of great significance as regards free movement of (professional) athletes and the Meca-Medina case of 2006 settled that EU competition rules were equally applicable to the regulatory activity of sport. The fact that the first ever State aid recovery decision concerns major clubs like Real Madrid, FC Barcelona and Valencia, give the decisions extra bite. Therefore, this blog post will focus primarily on the negative/recovery decisions[2], their consequences and the legal remedies available to the parties involved.[3] More...

International and European Sports Law – Monthly Report – May 2016. By Marine Montejo

Editor’s note: This report compiles all relevant news, events and materials on International and European Sports Law based on the daily coverage provided on our twitter feed @Sportslaw_asser. You are invited to complete this survey via the comments section below, feel free to add links to important cases, documents and articles we might have overlooked.   


The Headlines

Challenged membership put a lot of emphasis on football federations in May. The Court of Arbitration for Sport (“CAS”) has rendered an award, on 27 April 2016, ordering the FIFA Council to submit the application of the Gibraltar Football Association (GFA) for FIFA membership to the FIFA Congress (the body authorised to admit new members to FIFA). The GFA has sought since 1999 to become a member of UEFA and FIFA. In May 2013, it became a member of the UEFA and went on to seek membership of FIFA. More...


Operación Puerto Strikes Back!

Forget the European Championship currently held in France or the upcoming Olympic Games in Rio. Doping scandals are making the headlines more than ever in 2016. From tennis star Sharapova receiving a two-year ban for her use of the controversial ‘meldonium’, to the seemingly never-ending doping scandals in athletics. As if this was not enough, a new chapter was added on 14 June to one of the most infamous and obscure doping sagas in history: the Operación Puerto.

The special criminal appeal chamber,  the Audiencia Provincial, has held that the more than 200 blood bags of professional athletes that have been at the center of the investigations since 2006 can be delivered to the relevant sporting authorities, such as the Spanish Anti-Doping Agency (AEPSAD), WADA, the UCI and the Italian Olympic Committee (CONI). In other words, there is now a good chance that the identities of the involved athletes might eventually be revealed.

Source: http://www.telegraph.co.uk/sport/othersports/cycling/9834122/Operation-Puerto-doctor-Eufemiano-Fuentes-treated-tennis-players-athletes-footballers-and-a-boxer.html

This case note will analyze the court’s ruling and summarize its most important findings. Given the amount of time passed since the scandal first came to light (2004), the blog will commence with a short background summary of the relevant facts. More...

FIBA/Euroleague: Basketball’s EU Competition Law Champions League- first leg in the Landgericht München. By Marine Montejo

Editor's note: Marine Montejo is a graduate from the College of Europe in Bruges and is currently an intern at the ASSER International Sports Law Centre.

On 3 June 2016, the Landgericht München (“Munich Regional Court”) ordered temporary injunctions against the International Basketball Federation (“FIBA”) and FIBA Europe, prohibiting them from sanctioning clubs who want to participate in competitions organized by Euroleague Commercial Assets (“ECA”). The reasoning of the Court is based on breaches of German and EU competition law provisions. FIBA and FIBA Europe are, according to the judge, abusing their dominant position by excluding or threatening to exclude national teams from their international competitions because of the participation of their clubs in the Euroleague. This decision is the first judicial step taken in the ongoing legal battle between FIBA and ECA over the organization of European basketball competitions.

This judgment raises several interesting points with regard to how the national judge deals with the alleged abuse of a dominant position by European and international federations. A few questions arise regarding the competence of the Munich Regional Court that may be interesting to first look at in the wake of an appeal before examining the substance of the case. More...

Asser International Sports Law Blog | Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity - By Sofia Balzaretti (University of Fribourg)

Asser International Sports Law Blog

Our International Sports Law Diary
The Asser International Sports Law Centre is part of the T.M.C. Asser Instituut

Caster Semenya’s Legal Battle Against Gender Stereotypes: On Nature, Law and Identity - By Sofia Balzaretti (University of Fribourg)

Editor's note: Sofia Balzaretti is a Graduate research assistant and a PhD candidate at the University of Fribourg (Switzerland) where she is writing a thesis on the Protection against Gender Stereotypes in International Law. In addition to research in human rights and feminist legal theory, she has also carried out some research in legal philosophy and on the relationship between gender and the law.

 

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).


The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.


The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.


The elements of comparison
Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.


Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.


Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.


[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland; R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia; Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.

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