Men´s Law II. (Abstracts)

Kateřina Šimáčková, Barbara Havelková and Pavla Špondr Večl: New topics, new challenges: men’s law without question marks. In the introductory text, the editors of the book return to the reasons why feminist critiques of law, sensitive language, and mutual support for women are needed. The currents of opinion as well as clashes within feminism are discussed, including through the introduction of individual texts. The text reminds us of the importance of perceiving men’s issues and the possible backlash to presenting feminism’s demands, and ends with the appeal that only open discussion, fairly set rules and their fair application open up the possibility for every human being to make free decisions, so that they can truly follow their own path to happiness.

Constitutionalism

Barbara Havelková, Terezie Boková and Lucia Berdisová: The (non)constitutionalization of gender in Czechia and Slovakia. This paper answers the research question of what gender issues have been constitutionalized in Czechia and Slovakia and how, but also examines which issues have not been constitutionalized and why. We note that both Constitutional Courts have often been reluctant to explore hard questions. Instances of ‘non-constitutionalization’ (notably through dismissal of cases as ‘manifestly ill-founded) and ‘avoidant constitutionalization’ (through formalistic reasoning that focuses on procedural and other issues instead of human rights) have been common in gender- relevant cases. In terms of gender issues which have been constitutionalized, i.e. decided on substance, the areas of ”physical integrity” and “family” have been prominent sites of contestation. As regards the issue of physical integrity, women’s reproductive choices (access to abortions in Slovakia) and control over their bodies (especially in pregnancy and child-birth in Czechia), have been the focus of litigation. The courts have not taken women’s control over their bodies seriously enough, especially when confronted with the power of the medical profession. As regards the area of family law, there has been litigation around same-sex parenthood in Czechia, whereas in Slovakia, a pre-emptive, regressive enshrining of heterosexual marriage in the Constitution set the tone. Here, the idea that a heterosexual family based on marriage is normal and preferable underpins the thinking of the courts. Overall, the Czech Constitutional Court’s decision-making is marked by inconsistency. It takes steps forward, but also steps back and to the side. The Slovak Constitutional Court steps ‘in place’ by keeping to the middle ground and using consequentialist reasoning to take paths of least resistance.

Pavla Špondr Večl: Constitutionality of quotas for men and women in politics, or „Furthermore, I consider that fair party lists need to be introduced.” This paper focuses on the issue of quotas for men and women on party lists. It examines conditions under which ‘gender-neutral quota’, i.e. rules guaranteeing a minimum proportion of both men and women on a party list, might be considered as compliant with the constitution and the law in general. It is based upon a notion that inequalities between women and men still exist in the Czech Republic, both in politics and in other areas of life, and that gender equality in politics is a desirable aim. Referring to the international context of the issue, international human rights obligations as well as experiences of certain foreign countries, the author argues that it is possible to adopt gender quotas in the Czech Republic; she also analyses the relevant Czech law. When thinking about lawfulness of gender quotas, two basic questions arise: 1) Is an amendment of the constitution required to adopt gender quotas for party lists? 2) What set of rules and under what conditions might be considered compliant with the constitution? The answer to the first question is no. To answer the second question, the author uses the proportionality test, as developed by the Czech Constitutional Court. The author also presents other measures that might contribute to gender equality in politics and develops her own concept of fair and constitutionally compliant party lists. She concludes that appropriately chosen, binding gender-neutral rules for the placement of women and men on party lists, as a measure to promote gender equality in politics, are in line with the constitution.

Helena Hofmannová: A critique of the approach of the Czech Constitutional Court to the rights of LGBTQ+ persons and the issue of self-determination. This paper examines case law and reasoning of the Czech Constitutional Court in regard to the status and rights of LGBTQ+ persons as well as its implications on the public discourse. In particular, it analyses case law adopted (up to the end of 2023) and focuses on three thematic groups contained therein: i) adoption of children by same-sex couples, ii) legal recognition of foreign decisions on adoption, and iii) gender identity. Employing a critical theoretical framework, this paper scrutinises the approach of the Czech Constitutional Court to the issues of sexual orientation and gender and conceptualises its main (methodological) flaws, namely conservativism, avoidance or even refusal to include sexual orientation among the prohibited discriminatory grounds and, above all, failure to use established methodological standards of constitutional review.

Sarah Ouředníčková: A mother and a half: Why same-sex couples in the Czech Republic do not have the same rights as in Austria and Germany and how to change it? This paper asks what role the legislature and courts have played in Czech Republic’s failure to follow in the footsteps of its legally and culturally related neighbours, Austria and Germany, to equalise same-sex families. This despite the Czech population’s traditionally liberal attitude towards LGBTQ+ rights. It analyses the role of legislatures and courts in the development of same-sex family rights in the Czech Republic, Austria and Germany. It concludes that the fundamental difference and reason why same-sex families in the Czech Republic have fewer rights than in Austria and Germany is the absence of judicial equalisation of rights in the Czech Republic and that the Constitutional Court of the Czech Republic could follow the example of its German and Austrian counterparts and proceed to equalise the rights of same-sex families if the legislature does not decide to do so.

Šárka Dušková: When equal treatment leads to inequality: Reasonable accommodations as an integral part of the prohibition of discrimination based on sex. The author argues that the right to reasonable accommodations on the basis of sex should be explicitly enshrined in the Czech law. In the first part of this paper, she clarifies in which situations this right might be considered an integral part of the general prohibition of discrimination and then then suggests that, although often explicitly granted only to people with disabilities, the reasonable accommodations are an essential part of the right to equal treatment of other groups of persons, including women and trans people, as well. In the second part of the paper, the author argues that the European legal standards, in particular the case law of the European Court of Human Rights and the Court of Justice of the European Union, already implicitly contain the right to reasonable accommodations. Finally, the author examines conditions under which this right could and should be incorporated into the Czech law.

Violence and bodies

Daniel Bartoň: Why abolish statutes of limitations in cases of sexual offences. The paper analyses whether the applicable Czech law duly reflects situations in which victims and perpetrators of sexual offences find themselves and proposes solutions that could lead to a fairer arrangement. The author proposes to abolish the statute of limitations in these cases. He argues that this may be the best way to achieve the aims normally pursued by criminal law and aid a more equitable balance of legal relations between victims, suspects, and society at large.

Věra Nováková: Issue of domestic violence in child custody proceeding before Czech courts. The paper addressed the issue of child custody proceedings which were preceded by domestic violence perpetrated by one of the parents. The introductory theoretical part is followed by case studies and concrete practical examples. Experience shows that family courts tend to treat both parents – the perpetrator and the victim – as equally competent. Domestic violence is often considered as a harmful act concerning only parents, having no impact on their parental competence and ending with their separation. The author examines whether this approach is compliant with the statutory law and case law, as they currently stand, and elaborates on possible changes to the current legal practice and legislation.

Pavel Houdek: Rape but no violence: New definition of rape in the light of the current practice and scientific knowledge. The paper explores legal frameworks and social perceptions of rape. It emphasises the inadequacy of the existing definitions of rape that do not duly reflect ‘freezing’ as a common response of the victim. It discusses the possibility of re-defining rape in accordance with the motto that “only yes means yes”. The author argues that such a definition would take into account not only the aspect of physical violence but also psychological reaction of the victims to it, aiming to achieve a fairer protection and respect for the rights of victims of rape. Adoption of a new definition of rape appears to be crucial in order to recognise and reflect a wide range of victims‘ experiences and to align it with the current scientific knowledge and legal trends in the European Union. Finally, a need for legislative development on both international and national level is required to take account of these new perspectives and to ensure more robust protection for rape victims.

Petra Masopust Šachová: #ineedtosayit #eyetoeye Needs of victims of sexual violence through the prism of restorative justice. This paper discusses the needs of victims of sexual violence in relation to the concept of restorative justice on one hand and the current state of the Czech criminal justice on the other hand. Particular attention is paid to the victims’ need to tell their story in a safe environment. Ability to tell what happened is an important part of the victims’ healing process. The paper emphasises two crucial points: First, the Czech penal system is preoccupied with finding and punishing the perpetrator and fails to pay due attention to the victim’s needs. Second, the paternalistic set-up of criminal law exacerbates the hardships experienced by the victim during the proceedings. The concept of restorative justice makes it possible to overcome tensions between the victim’s needs and the current system of criminal justice. Restorative perspectives and principles might enrich the existing process of finding and serving justice with a new dimension that is sensitive and responsive to the needs of the victims, while encouraging acceptance of responsibility by the offender and addressing the underlying causes of crime.

Petra Presserová: Wanted: Compensation for victims of gender-based violence: affordable, fair, dignified. The present paper examines how victims of gender-based violence against women receive (no) compensation for non-pecuniary damage in criminal proceedings in the Czech Republic. Firstly, it studies the current court practice, relying on an analysis of 556 final judgments concerning three categories of crimes typical of gender-based violence (rape, domestic violence, stalking). The analysis reveals that up to 80% of victims did not receive any compensation in the criminal proceedings. Potential causes of this situation, especially the impact of systemic and individual barriers, are thus considered. Finally, the author argues that the current state of affairs – and, in particular, the State’s (in)ability to fulfil its international human rights obligations – is unsatisfactory and elaborates on its causes.

Sandra Pašková: Compensation for forced sterilisations of women: A victory with a bitter end. The paper addresses the issue of compensation provided to the victims of forced sterilisation carried out between 1966 and 2012, focusing mainly on the role of the Czech Ministry of Health. In 2022, the Ministry was entrusted with the task of implementing the compensation legislation. However, it has failed in this role as it i) continues to substantially exceed statutory time limits for processing of the claims and ii) is unaccommodating towards the claimants, making unreasonable demands and disregarding their inability to obtain evidence – in particular, medical records – to support their claims. Medical records play a key role in proving victims’ claims for compensation, nonetheless many hospitals have unlawfully destroyed such files. Yet, the Ministry requires the medical records from the victims and declines other evidence. The author argues that the lack of adequate response of the State was a major contributing factor to the emergence, continuation, and failure to come to terms with forced sterilisations. She proposes that the victims’ trust in the compensation mechanism is broken and that they are, in fact, subjected to secondary victimisation, being able to find justice only in courts.

Adéla Hořejší: Obstetric violence continues: Judicial discomfort with young women claiming rights. This paper examines the issue of denial of judicial protection to women who have experienced obstetric violence during childbirth. By analysing one particular judgment of the Czech Constitutional Court, it puts forward that the judiciary has created a system of legitimisation of obstetric violence. In particular, it argues that this judgment has restricted the universal principle of inviolability of the person – including the right to take a decision on the circumstances of childbirth – in relation to women in labour, to the point of negating it. The author proposes that, in cases when the woman in labour refuses to follow advice of the medical staff, the Constitutional Court created a notion of a paramount interest of the unborn child, as defined by a medical staff, which is antithetical to the interests of the mother. The author criticises this myth of polarity of interests which has basis neither in the statutory law nor case law. She also argues that the judiciary refuses to follow its own rules unless they support entrenchment of the patriarchy and arbitrarily extends legal rules to discipline women and their sexuality.

Aneta Bernardova: Unexpected publicity of the minority opinion regarding abortion of Polish women in the Czech Republic. The paper addresses the issue of restriction of reproductive rights, illustrating it on an example of availability of abortions to Polish women in Czech health care facilities. In the first part, the author discusses legal issues relating to the Polish abortion ban. In the following part, she delineates conflicting legal positions of professional associations which have been questioning legality of providing abortion services to Polish women in the Czech Republic after the Polish Constitutional Court’s judgment on abortions. The author further argues that although the right to abortion for EU citizens is clearly enshrined both in national and EU law, many health care facilities are effectively refusing to perform abortion procedures on Polish women. She, however, warns against efforts to amend the applicable statutory provisions, arguing that although they are far from perfect, amendments to them could result in creation of further barriers to the access to abortion.

Kateřina Stojanová: Abortion in the Czech Republic: Why the applicable laws are falling short. The paper critically evaluates applicable Czech laws on the access to abortion – as one of the fundamental reproductive rights of women – against the background of restrictions of this right in the USA and Poland. In the first part, the author describes and analyses legislative and practical shortcomings that have been overlooked for many years and that make access to abortion difficult for many women living in the Czech Republic. She also outlines possible solutions of this problem. In the second part, the author recalls past legislative initiatives and bills which attempted to restrict the access to abortion and highlights the potential perils of the present legislative initiatives which follow the same aim. In the third and final part, instruments of the international and EU law which might help to safeguard the current levels of reproductive freedom in the Czech Republic are examined.

Jana Bedaňová: Protection of refugees persecuted on grounds of sexual orientation and gender identity in Europe. This paper focuses on the issue of refugees persecuted on the grounds of their sexual orientation and/or gender identity in the context of the Czech Republic. Even though the definition of a refugee is harmonised in the European Union (EU), it is difficult for the abovementioned groups of persons to obtain asylum in the EU countries as they usually have to face a discourse of ’privatisation of homosexuality’ and a persistent ‘culture of distrust’ in proceedings on determination of their refugee status. The author demonstrates these claims on examples of national practice and an analysis of the case law of the European Court of Human Rights and the Court of Justice of the European Union. She highlights problematic nature of interpretation of the term “persecution” taken from the international refugee law through the lens of the Strasbourg system of protection of human rights. It also highlights unfortunate practice of using gender stereotypes and misconceived notions of sexual identities in administrative and court proceedings.

Family

Kateřina Šimáčková: How professional and societal stereotypes hinder the search for the best solutions to disputes over children. The author argues that traditional patriarchal professional and societal gender stereotypes predetermine individuals’ behaviour in their professional and family roles, in consequence allowing neither for an adoption of the best and most comprehensive solutions to disputes over children in case of breakdown of their parent’s relationship nor for a respectful approach to children’s rights and autonomy. Feminist legal theories based on literary archetypes (Antigone, Portia) show the traditional gendered conditionality of preference of a litigious approach over an amicable one. This paper also analyses causes of the failure of the Czech custodial justice system to find and implement consensual solutions to family disputes including, inter alia, i) traditional social roles and arrangements, ii) legal, administrative and organisational obstacles, and iii) lack of understanding of the specific needs of the children affected by family disputes. The author proposes that a multidisciplinary and cooperative approach by the custodial courts and an abandonment of stereotypes, biases and myths hindering their ability to choose the best solutions may be the way to go.

Andrea Baršová: Allied by choice: Non-traditional non-monogamous unions as the foundation of a family? Modern marriage, understood as a permanent union of two people based on equality of the spouses, has a short history. Transformation of a patriarchal monogamous union of a man and a woman into a modern marriage was reached in the West only in the second half of the 20th century. Marriage has also withstood its extension to same sex couples but has had to face other challenges as well. Among them are efforts to recognize non-monogamous marriage or another type of a legal partnership of more than two people living together as a family. Oftentimes, it appears as a call for recognition of polygyny based on religion or tradition. However, calls for protection of non- traditional non-monogamous unions regardless of gender appear, too, often in the name of human freedom, equality, and the need to find one’s family outside of the marriage and blood ties. This paper deals with the latter phenomenon. Referring to the proposals to enact polyandry in South Africa or the “union of responsibility” (Verantwortungsgemeinschaft) in Germany, the author seeks to understand the issues these proposals raise and to predict their effect on gender equality.

Adéla Horáková: Illegitimate children in the 21 st century. Same-sex couples cannot enter marriage and enjoy all the rights and obligations associated with it. This paper studies how this inequality affects children raised by same-sex couples and how it translates into their lives. It compares their legal status with that of children raised by opposite-sex married couples. It shows that children raised by same-sex couples suffer a disadvantage or even harm due to the difference in treatment of their parents, tantamount to ‘illegitimacy’. It argues that it is in the children’s best interest to eliminate this difference.

Petr Agha. Is marriage for all really needed? This paper focuses on the limits of legal(istic) approach to and theoretical foundations of the debate on same-sex marriages in the Czech Republic. Law, as an institution, aims to stabilise and normalise all aspects of life, including gender and sexual identity. Queer theory, as a critical legal theory, rejects the normative character of law and reveals that it is not an objective instrument existing outside of the society but an active agent in social dynamics. This chapter examines involvement of the contemporary mainstream marriage-equality movement in the entrenchment of a heteronormative paradigm of gender roles and sexual identities and its contribution to it.

Martin Kornel: Mortgage payments and their inclusion in the division of joint property of spouses. The paper deals with gender (in)equality in case of settlement of joint property of spouses, when both spouses contributed financially to repayment of a mortgage although only one of them was formally on the title. The first part describes, in broader historical and geographical terms, how the existing legal rules governing the joint property of spouses entrench gender inequality. In this regard, the author analyses a judgment of the Czech Supreme Court according to which the financial contributions of the non-titulary spouse are considered only to the extent exceeding a hypothetical rent to be paid by this spouse. In the second part, the author presents socio-economic data showing that such legal rules are detrimental to women. In the third part, he offers a detailed analysis of the abovementioned judgment of the Supreme Court and its reasoning. In the fourth part, he compares this case law with the case law dealing with a comparable issue of investment in somebody else’s property, particularly the real estate. In the fifth and final part, he presents alternative interpretations of the applicable statutory provisions, explaining why they might be more equitable and truer to the meaning and purpose of the legislation.

Care

Šárka Homfray: Impact of the Czech laws on a precarious position of informal caregivers for the oldest generation. The paper examines impact of labour law and social security law on living situation of informal caregivers. Informal care is defined as care provided to a person dependent on support, assistance, and care of close family members, relatives, or acquaintances. Similar to motherhood, taking care of close ones is a significant precarisation factor; however, the law treats these life situations differently. The author argues that i) lack of protection and support for informal caregivers on the labour market and ii) unsuitable regulation of care allowance in Act on Social Services are the main shortcomings of the existing system. Since informal caregiving is strongly gendered, shortcomings of the law affect predominantly women. Considering the current demographic trends, it is crucial to pay attention to this issue and to the position of so-called sandwich generation affected by it.

Klára Ille: How the State treats underage mothers – by helping them or punishing them instead? The author elaborates on methods of support and assistance provided by the State to underage mothers and their use in practice. It shows that rather than sufficient and uniformly used, the assistance is rather provided on a random basis and dependant on subjective decisions of officials. The author demonstrates shortcomings of the current system of assistance on a case study of a twelve-year-old mother who is herself a vulnerable minor due to the fact that her family is dysfunctional and therefore unable to provide her with requisite support. The mother’s young age and problematic family background are compounded by other risk factors which render her highly vulnerable, in particular i) her mental state immediately after giving birth, ii) her minority ethnic background, and iii) her disability. The author concludes the paper by a critical evaluation of the instruments available to the State authorities and their use in practice, ranging from the most appropriate (entrusting both the minor mother and the newborn child to foster care) through less appropriate (entrusting both of them to institutional care, i.e., in the context of the Czech Republic to a youth re-education centre) to utterly inappropriate ones (separation of the minor mother and the newborn child).

Eva Petrová: Twilight of the early childhood care institutions. The paper examines, in its first part, how could early childhood care institutions persist in the Czech Republic even in the third decade of the 21st century, and addresses arguments raised by the opponents of their eradication. It confronts the critics‘ claims that certain children cannot not be placed in foster care and that only an early childhood care institution would be able to provide certain children with the requisite specialised health care. In the second part, it gives a detailed account of the current state of affairs as regards the plan to phase out the institutionalised system of care for infants, as well as some thoughts on the future of early childhood care institutions. In its third part, the author provides a brief overview of the history of collective care institutions for infants, comparing the Czech Republic with its European counterparts. In the final part, the author describes negative consequences of institutional care for infants, referencing recent research findings (including attachment theory).

Kristina Koldinská: How the Covid-19 pandemic revealed indirect gender discrimination in the Czech system of social protection. The present paper analyses the Czech system of social security and its functioning (not only) throughout the Covid-19 pandemic. The Czech social security system is arguably one of the most generous in the world. The author argues that the time has come to modernise it and free it from the legacy of its past. She explains that, in the past, many of the subsystems of the social security system were designed for women working predominantly in working-class professions and living in marriages in which the man fulfilled the role of the breadwinner whereas the woman fulfilled the role of the stay-at-home parent for much of her life: first with their children, then with their grandchildren and finally with their own parents. She argues that systemic changes in the field of the social security legislation are required in order to eliminate possibility of unintended indirect discrimination of women, as the Covid-19 pandemic has revealed.

Work

Lucie Obrovská: Thorny road to equal pay for women and men: Are we able to recognise work of equal value? This paper explores causes of the high pay gap between Czech women and men, analyses the concept of equal work, as understood by the Czech Labour Code, and deals with related issues. In the first part, the author presents the main neuralgic points that hinder progress in regard to the pay gap, in particular lack of transparency, outdated notions of “fair” remuneration held by the employers, and inadequate nature of inspections of Labour Inspectorate. Furthermore, an analysis of equal pay for work of equal value as well as the pertaining statutory regulation and case law is presented. In the second part, potential solutions to partial problems as well as systemic changes proposed by the Czech Ministry of Labour and Social Affairs are outlined.

Eliška Hronová and Helena Kopa Bončková: Why nobody asks “how much do you earn?” Gender pay gap in the Czech Republic and transparency tools to tackle it. Introduction of pay transparency is a prerequisite for an effective fight against the gender pay gap and unequal remuneration of men and women for equal work. In the Czech Republic, the situation in the field of equal pay has been unsatisfactory and transparency instruments have been insufficient for a long time. EU Directive no. 2023/970 on pay transparency could, if duly transposed, result in a welcome change. The authors first elaborate on the various forms of pay transparency. They then analyse, in relation to the aforementioned Directive, instruments that apply in the private and public sectors, exploring, in particular, specificities of the latter. The instruments used by the Directive are primarily designed to ensure transparency in the use of public funds but may also contribute to greater pay transparency in other spheres as well.

Klára Cásková: Female paramedics and safe weight limits for lifting loads – legitimate protection or discrimination? When considering whether women are suitable candidates for the position of a paramedic, the wide range of qualification requirements is often narrowed down to a mere assessment of their physical strength. This paper analyses restrictions resulting from § 29 of Government Regulation no. 361/2007 Coll., which sets maximum safe weight limits for loads that may be carried by men and women, and addresses the question whether these restrictions are a legitimate measure protecting women’s health at workplace within the meaning of Article 29(1) of the Charter of Fundamental Rights and Freedoms or rather their discrimination. In this regard, the present paper analyses aims of the abovementioned laws and possible ways how to achieve them while respecting the right to equal treatment.

Education

Petra Kalenská: Girls would not want to learn how to fix ski bindings, or how the Czech system of primary education discriminates against girls. This paper examines discrimination based on gender in the Czech system of primary education. The author analyses the legislative framework, including international obligations of the Czech Republic, and then conducts research on school curricula. Based on an examination of six primary schools, it shows that different curricula continue to be applied for girls and boys, often dividing them into separate groups for some of the lessons or learning activities. The author argues that these practices undermine efforts to eliminate gender stereotypes and violate the pupils’ right to equal access to education regardless of their gender.

Jiřina Chmelová and Hana Lupačová: Pupils with disabilities: Let us give them a chance to receive an education and change the world. This paper deals with the issue of access of children with special needs to schooling, either mainstream or special, and the concept of inclusive education. Unlike in other countries, children with special needs are dropping out of the Czech school system into home education not due to the free decision of their parents, but due to schooling system’s failure to accommodate their needs. The authors argue that the current schooling system is built upon a notion that these children should adapt to it, not the other way around. The authors articulate the practical difficulties faced by such children. Despite their special needs, these children often spend less time in school than their peers. The authors also describe shortcomings of the system of funding of teaching assistants working in mainstream schools before 2016, as well as litigations initiated by the children’s parents to assert their rights. Finaly, the authors argue that the system of separate special education is an inadequate solution to this problem. They contend that, due to unconstitutional legislation, the children with special needs often receive less support in special schools than in regular schools. This has a direct impact on their ability to enjoy their right to education, consequently affecting them for the rest of their lives.

Zuzana Andreska: Gender-based violence on campus and obstacles to its eradication: A case study of the Faculty of Law of Charles University. This paper addresses gender-based violence at universities as an emerging agenda for university administrations. Using a case study method, the author examines policies and solutions to gender-based violence adopted at the Faculty of Law of Charles University in June 2022, as well as the stakeholders’ reflections on them. The theoretical contribution of this analysis – – of institutional norm-creation – through the perspective of socio-legal studies and feminist legal theory lies in the identification of several types of resistance to fulfilling the obligation to create a safe learning and working environment.

Professions

Marína Urbániková, David Kosař and Barbara Havelková: The Art of Waiting Humbly: Women Judges Reflect on Vertical Gender Segregation. The paper offers the first interview-based study of vertical segregation in the judiciary in Czechia (and post-socialist Central and Eastern Europe more generally) that also analyses the (lack of) reflection of one’s own position by women judges. The paper shows that while the research participants were very well aware of what is holding women judges back, a majority of them took the status quo for granted, did not perceive the structurally unequal position of men and women in Czech society and in the judiciary as a problem, and accepted the consequences of this inequality as a part of a woman’s fate. We argue that this rationalisation of the under-representation of women judges in the top echelons of the Czech judiciary, the lack of reflection on its deeper reasons, and, in some cases, even the denial of the existence of any gender inequality not only contribute to the status quo but help reproduce it.

Markéta Brabcová: Sexual harassment at the Czech Advocacy. This paper explores the issue of sexual harassment in Czech law firms. It examines broader context of the law firms’ functioning, including the hierarchical and power structures within this environment. It further analyses specific manifestations of sexual harassment in law firms and provides an overview of its forms – including verbal, non-verbal and physical ones – and studies its impact both on individuals and the workforce in general. The research is based on interviews with attorneys and trainees.

Kristýna Abel Benešová: Association of female lawyers: A space for solidarity or a relic? This paper categorises objections raised against the existence of female-only associations of lawyers – in the Czech case, “Women in Law” – and challenges them. The author divides them into three categories, namely objections that such an association is (i) unnecessary, (ii) dangerous, and (iii) merely a passing trend. This criticism is, in the author’s opinion, based on an erroneous assumption that equality between women and men has already been achieved, or on a distorted perception of the specific needs of female lawyers. Such an association might provide a platform for (a) sharing experiences and specifying the needs of female lawyers, (b) questioning whether various professional assumptions – often created by and to the benefit of male lawyers but passed off as universal – work equally well for female lawyers, and, finally, (c) creating a female-based narrative of being a successful lawyer.

Petra Ali Doláková: The Man’s World of Diplomacy. This paper is based on the notion that conditions of foreign service, career advancement, and appointment to decision-making positions in the Czech diplomatic service inevitably lead to under-representation of women in high positions at the Czech Ministry of Foreign Affairs. It describes, from a practical perspective, low availability of measures to help reconcile work, private and family life (hereinafter “reconciling measures”) to diplomats in foreign service as well as to high-ranking officials in the headquarters. The paper also outlines some of the improvements that have been achieved, such as availability of preventive care in pregnancy and care during childbirth while posted abroad, or the expansion of home working. The situation is not helped the practice of political nominations for ambassadorial posts which perpetuates and entrenches under-representation of women in high positions in the Czech foreign service too.

Institutions, public space, and the environment

Adéla Šípová: From the life of a female legislator – a personal reflection. The discussed the influence of unequal representation of women in politics on the quality of laws adopted by the Parliament. For the time being, the legislative process is dominated by men, as illustrated by the fact that, currently, only one woman is a member of the Cabinet. Merely 25% of the members of the Chamber of Deputies (lower chamber of the Parliament) and 18% of the members of the Senate (upper chamber) are women. This under-representation of women among legislators fails to duly reflect the needs of the half of the population. In consequence, women’s unique experiences in many areas of life are overlooked. Certain topics – such as ensuring that women as typical caregivers to children and elderly are not being overburdened – are thus being overlooked and marginalised. The paper then outlines difficulties faced by female politicians in their careers, be it obstacles to their career growth, their lower visibility, or difficulties in promoting topics important to women. To a large extent, this paper is a personal reflection of a woman who became a member of the Senate without any preceding political experience.

Nicole Štýbnarová: Do women only have rights when it pays off? This paper elaborates on a theoretical framework for studying relationships between economic arguments and logic on one hand, and legal interventions promoting gender equality on the other, in particular from the perspective of a feminist legal theory. It utilises examples of gender-equalising policies and legislation introduced at the international level to explain different variations and forms of these relationships. It also offers a theoretical and empirical basis for a claim that economic profitability is an inherent part of the legal concept of gender equality and shows why this interdependence is part of the persistent and recurring problem of gender inequality.

Vendula Kolařík Mezeiová and Anna Durnová: Legal expertise, emotions, and gendered public discourse: The debate on banning fathers at birth. This paper analyses the media debate among lawyers about the proportionality of the ban on fathers’ presence at childbirth during the COVID-19 pandemic in the Czech Republic. The authors study how the discourse of legal professionals works with emotionality and, using interpretative analysis, how each group of legal experts approach emotions differently and how their approach reflects their legal professional assessment of interference with fundamental rights, in particular women’s rights. A negative approach to emotionality, the trivialisation or marginalisation of its bearers by legal professionals, indicates a lack of consideration of gender, socio- economic, cultural, and other similar aspects that are, however, inherent to human rights issues. In consequence, some legal professionals, by their negative approach to emotions, create and reproduce inequalities.

Jana Kvasnicová: Sexy or sexist? Is the regulation of sexist advertising about morality or equality? A critique of the Supreme Administrative Court’s approach to sexist advertising. The subject of this paper is a critique of the jurisprudential dialogue between the Supreme Administrative Court and the Regional Court in Brno in regard to sexist advertising. The author explains that although the Supreme Administrative Court upheld the Regional Court’s judgment, it substituted the original reasoning based on the protection of human dignity and equality of women with its own one based on morality (perceived as a competing interest justifying the interference with freedom of expression). Relying on feminist legal theory, the author claims that reliance on morality instead of equality and human dignity in such cases is problematic.

Marek Pivoda and Monika Hanych: Algorithmic discrimination: Invisible inequalities in the world of distorted data. Configuration of artificial intelligence systems often leads to unequal, unfair or distorted functioning of invisible processes that affect lives of a wide range of people. This paper aims to open a debate on the issue if and how the existing legal instruments could be used to tackle so-called algorithmic discrimination. The authors first explain the concept of algorithmic discrimination and describe its underpinning factors and characteristics, including speed and range of discriminatory effects, concealed replication of human fallibilities and errors, input bias and false causality, and opacity of the methods employed. The authors then argue that ability of traditional legal concepts to effectively uncover and sanction emerging algorithmic inequalities is severely limited. They thus propose a revision of existing legal instruments. In particular, prohibited discriminatory grounds should be treated flexibly, the existing concept of indirect discrimination should be reconsidered, and collective action in cases of (algorithmic) discrimination should be introduced. Finally, the authors argue in favour of a deeper redefinition of algorithmic justice, claiming that fairness of algorithmic decision-making cannot be assessed only on the basis of fairness of outputs (i.e., formal equalisation of “statistical” inequalities) but must be assessed with respect to structural issues of inputs. In this regard, they assert that a broader representation of women and other disadvantaged groups at the early stages (i.e., education, research and design of the algorithms) as well as exposing economic and political interests of technology companies and dominant players on the market are crucial in order to achieve greater equality.

Denisa Skládalová and Vojtěch Vomáčka: Why do men discuss climate change and women fetch water? This paper focuses on gender aspects of climate change. It explores significant differences between the impact of the climate change on men and women and criticises the lack of gender mainstreaming in climate policies adopted at international, EU and national level. It shows that underrepresentation of women in decision-making processes has negative implications for both climate protection and gender equality. At the same time, if approached correctly, climate protection policies may serve as an opportunity to redress persisting gender inequalities and strengthen the rights of women and girls as vulnerable persons. The authors thus argue that it is necessary to integrate a gender perspective into policies aimed at tackling climate change as well as to adopt measures strengthening the role of women in search for solutions to the global climate crisis.

Zuzana Fellegi: On the conceptual foundations of gender equality and affirmative action in public decision-making. This paper examines the basic concepts of “gender” “equality” and “affirmative action” on “public decision-making” through the prism of their codification and interpretation in international law on the level of the United Nations, Council of Europe, and European Union. Using descriptive and comparative analysis of international conventions, recommendations and decisions of international monitoring bodies, it analyses these concepts and the emerging consensus in this field. It argues that although the law has traditionally emphasised formal equality, the current laws recognise both historical and current disadvantages faced by women and, in consequence, allow for the use of affirmative action to achieve also their substantive equality. Modern international law and opinions/ decisions of international monitoring bodies permit and encourage the use of gender affirmative measures, including quotas, as long as they comply with the requirements of legitimacy and proportionality. This paper argues that equal representation of women in public decision-making is becoming a fundamental principle of international law which is crucial for legitimacy of democracy. The paper highlights the need to refine the abovementioned concepts and terms to allow for an effective deliberation and development of new (legal) norms.