Men´s Law. Are Legal Rules Neutral? (Abstracts)
Kateřina Šimáčková: Men´s Law or Are Legal Rules Neutral? The introductory text presents to the readers how the book was created, it deals with the topic of under-representation of women in decision-making processes and presents why it is necessary to look at law from the gender perspective. The objective of the book is not only to present situations and rules in which the legal rules against both sexes are not neutral but also to introduce women – authors who should not be left unnoticed. The paper also convinces women about the need for their co-decision and gives them advice on how to do it.
Pavla Špondrová: Whose Law Is It? Three Waves of Feminism and Three Dimensions of the Feminist Criticism of Law. The paper presents the basic theoretical foundations of the Men´s Law book. It defines the focus and subject-matter of criticism of the three waves of feminism. It analyses in detail the feminist criticism of law, distinguished according to three dimensions of law – the criticism of written law, criticism of origin, interpretation, and application of law, and criticism of law as a tool for enforcing justice. Finally, it reflects on future developments, while underlining the hypothesis of the non-functioning of equality without freedom and the fundamental role of solidarity.
Barbara Havelková: Feminism, Gender and Law. The paper deals with the concepts of feminism and gender in the Czech legal context in an attempt to combat the ignorance and misunderstanding of the concepts, as well as to change reluctance against them. It assumes that both the feminist position and the concept of gender are useful or even necessary for a deeper understanding of reality and for a comprehensive and critical understanding of the functioning of society and law. The first part presents feminism as a project that identifies and seeks to redress the injustice against women. The second part discusses gender as an analytical concept that makes it possible to distinguish a socially created understanding of gender from the biological one, and demonstrates its usefulness by examples of anti-discrimination law and responses of law to gender-based violence. The final part deals with two characteristics of the author’s feminism – anti-essentialism and structuralism.
Hana Havelková: Roots of Gender Legal Inequalities in Modernity. The paper illustrates the so-called bourgeois model of gender relations, focusing on the symbolic and institutional level, and its projection into the modern gender formula and legal systems. The paper is based on hypotheses that question the common misconceptions about the development of the foundations of the (in)equality between women and men. It presents in a detailed manner two fundamental enlightenment schools of thought, contradictory in their understanding of the position of women. Further, it analyses the exclusion of women from public (human) and private rights. Finally, it summarises the reasons for the public and private subordination of women.
Andrea Baršová: Czechoslovak Revolution 1918/19: The End of Male Order? The revolution of 1918/19, which led to the establishment of Czechoslovakia, was not only a national revolution but also a social revolution. The equality between women and men was one of the values of the new order established by the revolution. The paper examines the barriers which the revolutionary call for women’s equality in the creation of a new legal order encountered. Women struggle against many such barriers even today.
Pavel Uhl: Role of Women in the Czechoslovak Dissent and its Legacy for the Post-November Era. The paper contains a personal reflection on how the idea of gender equality (in any way named or grasped) was reflected in the ideological background and actual functioning of the Czechoslovak opposition from 1968 to 1989. It also deals with the criminal repression by means of which the then system sought to suppress this opposition, specifically directed against women from the dissent.
Veronika Bílková: International Men´s Law. The paper summarises selected aspects of the criticism of international law in the 20th century and analyses the organisational and prescriptive structure of international law, seeking to answer the question of whether international law is neutral or male. Further, it addresses the question of what the organisational and prescriptive structure of international law should look like in the future, so that it is truly “common to all humankind” and neutral, and outlines several steps already taken in this direction. Finally, it lists the benefits of international law common to all humankind over men´s law.
Kateřina Uhlířová: Development of International Criminal Law in Context of the Criminalisation of Sexual Violence. The paper examines the development of international criminal law in the context of criminalisation of sexual violence and deals with the position of victims (including the process of victimisation) and the specific criminal responsibility of perpetrators of sexual and gender-based crimes committed (mostly) during international or internal armed conflicts. The cases discussed demonstrate that, as a result of a shift in the decision-making activities of international criminal tribunals and courts, sexual violence is no longer perceived only as “regrettable” but it is punished as a war crime, crime against humanity or genocide, if the relevant facts of the case are ascertained.
Kristýna Molková Foukalová: Women onthe Path to Peace, Not Only in Colombia. The paper describes the involvement of women in peace negotiations as one of the areas traditionally dominated by men. It emphasises the reasons for such involvement of women, presents its international political and legal bases, and describes how it is possible in reality to fulfil both the requirement for the women’s physical participation in and their influence on peace negotiations and the requirement for the gender perspective of peace treaties. Finally, as a positive example, it discusses the peace negotiations and the peace treaty which ended to a great extent the conflict in Colombia in 2016 and in which the role of women was given great attention. Yet to this day, in Colombia or elsewhere, the path to peace for women is not fully open and unobstructed.
Věra Honusková: Saved by Interpretation: Gender Perspective of Refugee Legislation Shift in the European Region. The first part of the paper summarises the numbers of refugee women and the basics of the European refugee legislation. The second part deals in more detail with the evolution of the refugee definition, with the Council of Europe and European Union regulations, and with the gender-oriented interpretation of the concept. The third part is devoted to reflecting on whether Europe represents an area in which refugee women are protected. The conclusion deals with the question whether it is for a woman similarly difficult or more difficult or easier than for men in the European area to fulfil the definition of refugee under similar conditions.
Linda Janků: Immigrant Detention of Vulnerable People or All Refugees Are Not Same. The paper deals with the definition of vulnerable persons in asylum and immigration law and describes problems of the legal regulation and decision-making practice in relation to the detention of vulnerable foreigners. It analyses two basic legal problems, namely the failure to take into account the vulnerability of persons who are not applicants for international protection and the different treatment of the same categories of vulnerable refugees. These problems are analysed not only in general but also in terms of gender. Finally, it offers possible solutions to the main problems.
Petra Kalenská: Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence – Just Another Council of Europe Convention? The paper assesses the Istanbul Convention from the perspective of international human rights law. To this end, it defines the convention in three dimensions – as an international human rights convention governed by the regulations applicable to such conventions, as a convention of the Council of Europe as compared to other conventions of the Council of Europe, and as a convention on women’s rights set in the context of the development of international law on women’s rights. Finally, through comparing this Convention with other conventions, the reasons for its critique are revealed.
Violence and Punishment
Radan Šafařík: Rape: Sexual Coercion by Violence or Absence of Consent? The paper deals with the development of the concept of rape crime and the current ability of Czech law to ensure access to justice in accordance with international human rights standards for rape victims. It describes the statistical frequency of rape and its impacts and discusses the definition of rape. It analyses in detail the development of the criminal-law regulation of rape and the relevant case-law in the Czech Republic, as well as the question of appropriate punishment of rape. Finally, it offers a brief reflection on the further development of the definition of rape in Czech law.
Zuzana Fellegi: Who’s Afraid of the Istanbul Convention. The paper explains the content and meaning of the Istanbul Convention. It depicts the reality and the legal regulation of violence in the Czech Republic (focusing on violence against women) and the Czech discourse on the Istanbul Convention. Further,it analyses the criticised Covenant clauses and the causes of their criticism and defines the debate on the Convention as a clash of progressive and conservative ideology.
Lucie Hrdá: Do the Courts Understand the Victims of Violent Crime? The paper offers an insight of a specialised lawyer into the reality of the behaviour of the law enforcement authorities, especially the courts, towards the victims of crime during the criminal proceedings. The author offers her findings from practice, identifies systemic and personal deficiencies resulting in the secondary victimisation of crime victims, and illustrates her conclusions using three court decisions. The paper concludes by recommending measures that could improve the situation.
Barbara Havelková and Zuzana Andreska: #metoo in the Czech Republic or Defence of the Patriarchate Against the Non-existent Movement. The paper presents the legal framework for protection against harassment and identifies some of its shortcomings, while stressing that effective combat must be fostered in particular at a cultural and social level. Based on an analysis of papers presented at the conference “Legal Aspects of the #metoo Campaign”, it identifies nine aspects of the Czech discourse on harassment, which are obstacles to effective combat of this issue. It points out, inter alia, that harassment is not motivated by “natural” sexual instincts but it constitutes a structural problem made possible by a certain cultural environment.
Katarína Šipulová and Monika Hanych: Stolen Intimacy: Sexual Harassment on the Internet. The paper deals with the analysis of the current phenomenon of unauthorised distribution of intimate video and photographic recordings on the Internet. First, it focuses on the issue of terminology and points out the problems of popular media concepts (revenge porn), consisting mainly in the implicit stigmatisation of the victim. Further, it explains which types of social behaviour fall under the non-consensually acquired or non-consensually distributed intimate materials and examines the extent to which these types of sexual harassment on the Internet are regulated by the current Czech legislation and what role the courts play in the protection of the victims’ rights. Finally, the paper discusses the role of the media and social discourse in pushing the boundaries of sensitivity to (sexual) intimacy on the Internet.
Barbora Platzerová: Right of Self-Defence in Domestic Violence: Formal Equality in Gender-based Violence in the PRC. The paper deals with the right of self-defence in cases of domestic violence in the People’s Republic of China. It explains how the current Communist Party policy, which maintains the concept of women’s subordination to men and descendants to parents, influences the decisions of courts and other administrative authorities during criminal proceedings. As a result, the right of self-defence is given strict boundaries which indirectly reinforce the notion of domestic violence as a common element of marriage and family life in general.
Irena Marková: In Russia for Life – Protection of the “Tender Sex”? The paper discusses the application of the concept of women’s vulnerability in the area of punishment. It analyses the judgment of the Grand Chamber of the European Court of Human Rights in the case of Khamtokhu and Aksenchik v. Russia, including dissenting opinions. It also defines the concept of women’s vulnerability and their protection from the perspective of the ECtHR, the United Nations, and the European Union. Finally, it considers the causes, reasoning, and consequences of implementing the concept of women’s vulnerability and proposes alternatives for eliminating women’s disadvantages.
Decision-Making, Politics and Public Space
Pavla Špondrová: They Called Her Ministerial Counsellor. Does the Language Used in Czech Law Neglect Women? And Does It Matter? The paper deals with the influence of language on the functioning of society and the influence of language in Czech law. It shows that the use of generic masculine (the use of masculine gender to describe both men and women), which is not nearly as traditional in law as it might seem, leads to the invisibility of women in law itself and in society in general. The paper offers a number of alternatives for including women in legal texts and thus also in practice affected by law.
Ondřej Slačálek and Markéta Kos Mottlová: Half-way Policy. The first part of the paper discusses the causes of low representation of women in politics, focusing on institutions and political parties, as well as cultural patterns. It further explains the concepts of glass ceiling and glass cliff with the help of examples. The second part analyses four possible solutions to the under-representation of women, namely the introduction of quotas, soft measures to support women’s participation in political parties, pressure to change cultural stereotypes and political leadership, and radical questioning of the political leadership in the form of anarcha-feminism. Finally, it proposes solutions with an emphasis on transforming the cultural sources of gender inequalities in politics.
Marína Urbániková: Tell Me Where the Women Are: Where Do Czech Female Journalists Go and Why Should We Care? The paper analyses the structure of Czech journalism in terms of gender. It examines why female voice is important in the media. It also analyses the representation of women in the Czech media, the profile of Czech female journalists and female students of journalism and the barriers they have to face, while the patterns and mechanisms as highlighted by the paper are broader and can be seen in other professions, such as a lawyer’s profession or a profession in the judiciary. Finally, it proposes measures that could lead to a more balanced representation of women in the media.
Zuzana Vikarská: University Competitions: Can the Under-represented Sex be Favoured? The paper defines the distinction between formal and material equality and considers the reasons for favouring the under-represented sex. It further analyses the relevant Czech and European legislation in order to answer the question whether favouring the under-represented sex is legally allowed and under what conditions. Finally, it deals with possible positive measures de lege ferenda and in conclusion it searches for solutions beyond legal rules.
Šárka Homfray: Does Collective Bargaining Respond to Women’s Needs or Does It Help Maintain Stereotypes? Although, by definition, collective bargaining must take into account the needs of all employees involved, it should also have room for gender mainstreaming. Efforts should be made to take into account the different needs of different groups of employees and not to strengthen stereotypes resulting in persistent gender gaps in pay, unequal distribution of care or career advancement complications. This requires the education, awareness and sensitivity of all actors in the process.
Jana Kvasnicová: Sexist Good Manners and Advertising. The paper examines the influence of defining prohibited advertising as contrary to good manners on the practice of supervisory authorities. First, it defines sexist advertising and tools for its regulation. Further, it deals with the interpretation of the concepts of good manners, discrimination, and dignity in relation to sexist advertising. Finally, it presents examples of supervisory authorities’ decisions related to sexist advertising found contrary to good manners.
Women in Legal Professions
Marína Urbániková, Barbara Havelková and David Kosař: Women´s Law? (De)feminisation and Gender Segregation of the Czech Judiciary in Figures. The paper offers a series of unique time series that represent the development of representation of women and men among graduates of law schools and in legal professions, especially in the judiciary. At the same time, it analyses them and shows that, despite the fact that the Czech judiciary is exceptional among decision-making professions because women represent the majority in the judiciary, it is also a profession where there is vertical gender segregation and where there is a slight defeminisation process. The vertical gender segregation is manifested by the fact that the “higher” we look, the fewer women in the judiciary we see – be it the judiciary hierarchy or the position of judicial officials. Their number in those positions is also gradually decreasing and thus we are seeing the defeminisation in the positions of influence and power.
Martin Kopa: Why Should Strong Women – Judges Be in High and Supreme Courts? The paper shows, based on the life of Ruth Bader Ginsburg and the important court cases in which she participated, whether as a lawyer or judge at the US Supreme Court, why women should be more represented in high and supreme courts and how law and justice can benefit from women’s experience.
Lucia Madleňáková: Female Lawyer With or Without Children? The paper deals with the search for answers to two basic questions – firstly, how the decision to have children can be reflected in the career of a junior lawyer with regard to the legal regulations to the lawyer’s profession, and secondly, whether this situation can be solved by adjusting the regulations discussed. Finally, it offers a possible solution.
Věra Nováková: Women as Undercarriage of the Public Prosecutor’s Office. The paper reveals discrimination against women in the career advancement in the public prosecutor’s office system on the basis of statistical data, which the author complements by her long experience and interviews with other public prosecutors. After evaluating the current development, the author also suggests possible steps towards establishing more equal opportunities within the public prosecutor’s offices.
Care, Work, Family and Children
Zuzana Andreska: Is Care Work? The paper deals with the relationship between the concepts of work and care from the perspective of the feminist criticism of law. It points out that not only the exercise of care by women, but also the culturally rooted link between care and femininity hinders the realisation of a formally established equality between women and men. The paper presents three models of solution to inequalities in work and care: women’s participation in the labour market, compensating for lost opportunities in the labour market through the social security system, and equal perception of care and work as an essential part of the life of every member of the society.
Lucie Obrovská: Serious Operational Reasons as an Instrument of Discrimination Against Female Employees? The Czech Labour Code is commonly described as relatively protective. But does it really protect the caregiving employees? Can a Czech female employee rely on being allowed by her employer to adjust her working hours? Or would the applicable legal regulation need some changes and, if so, what changes?
Klára Cásková: Can Female Foreigners in the Czech Republic Afford to Have Children? The paper illustrates the real impact of the Czech health insurance legal regulation on female foreigners from non-EU countries and their new-born children. The author describes the problematic nature of the current situation, defines the basic concepts of the issue, and tries to answer the essential question of who should bear the costs of emergency care. At the same time, she proposes several possible legislative measures to eliminate the current situation, which, according to the author, leads to illegal indirect discrimination.
Kristina Koldinská: Poverty. A Female Question Forever? After a theoretical introduction to the phenomenon of female poverty, the paper draws attention to the problems of the Czech system of support in need in relation to women who are more at risk of poverty than men and thus become victims of indirect discrimination. It also deals with the specific situation of homeless women and finally proposes several legislative changes that could reduce the poverty of women in the Czech Republic.
Jiřina Chmelová and Hana Lupačová: Autistic People Excluded; Will We Ever See Changes? The paper presents autism and addresses the question of whether it is necessary to treat it. It discusses the right of autistic people to health and the impact of insufficient services for families with autistic children on women and men. Further, it analyses the need for early intervention and insufficiency of services and support in the Czech Republic. The authors propose measures to improve children’s access to early therapy, which can help mitigate the impact of disability, and to support caring parents and facilitate their access to employment or self-employment in an effort to prevent the whole family from falling into poverty due to a child’s disability.
Gaby Khazalová: Advance Support and Maintenance: Debt to Czech Single Mothers. Czech single mothers receive a lot of advice, but no systemic solution. According to the author, the only way to remove the burden of judicial enforcement and fear of escalation of conflict with the children’s father from single mothers is the advance support and maintenance. The paper deals with the explanation of the reasons for the failure of the legislative proposals for the advance support and maintenance.
Eva Petrová: Waiting of Romani Women for Compensation for Forced Sterilisation. The paper gives a theoretical definition of sterilisation and forced sterilisation and shows its impacts on the psychological and physical health of women. It outlines the history of forced sterilisation in the territory of today´s Czech Republic and summarises the case-law of the European Court of Human Rights with respect to this issue. It deals in more detail with the topic of compensation for forced sterilisation and proposes legislative measures that would bring compensation to aggrieved women in the Czech Republic.
Adéla Hořejší: Obstetric Violence. How (Old) Men Decide on the Bodies of (Young) Women. In providing obstetrics care, violence is present in a much larger and more sophisticated dimension than we can normally imagine, not only at an individual level but above all systemically. The obstetric violence is a standard that justifies violence (not only) against women.
Zuzana Candigliota: How Midwives Were Eradicated in the Czech Lands. The paper describes the process of limiting the activity of midwives. It deals in detail with developments after 1989, focusing primarily on the harmonisation with European Union law, specific Czech legislation, attempts to punish midwives, midwifery working groups and the position of midwives, as well as the role of courts and the ombudsperson in addressing the position of midwives. Finally, it looks at the issue from the perspective of the right to health.
Aneta Majerčíková: The Right to Breastfeeding or We Support Breastfeeding But…The paper deals with the right to breastfeeding as an inseparable right of both the child and the mother. It summarises the development of breastfeeding from the originally purely female domain into the sphere of men’s influence and the influence of feminism on the development of breastfeeding perception. It analyses the content of the right to breastfeeding and its enshrining in international law, European Union law, and Czech law, and the reality of its implementation in the Czech Republic. Finally, it draws attention to some barriers to breastfeeding that the law does not adequately address.
Martina Grochová: How Women Are Talked About in Parliament in Relation to Assisted Reproduction. The author of the paper analyses the minutes from the meetings of the Senate and the Chamber of Deputies, where the laws concerning the conditions of access to assisted reproduction were discussed. She demonstrates by specific examples how women are talked about in this context, how they are presented, and what characteristics are attributed to them.
Kateřina Šimáčková: Surrogate Motherhood in the Czech Republic – Realm of Fertility Centres. The paper deals with the question whether the introduction of surrogate motherhood is in the interest of all actors of this arrangement, i.e. a surrogate mother, a child thus born, and ordering parents, and the related topic of commodification (sale or lease) of parts of the human body. It asks whether it is necessary to change the current Czech legislation, which does not prohibit surrogate motherhood but does not provide any special regulation, even considering that private fertility centres are the main driving force of the development of Czech assisted reproduction.
Petr Kalla: Two Mothers? The paper is an introduction to the issue of homoparental families and summarises the development of their possibilities of access to assisted reproduction in Europe and the Czech Republic. The author reflects on the issue of making assisted reproduction available to lesbian couples in the Czech Republic through the courts and proposes legislative measures. The author also describes the recognition of lesbian parenting established abroad and in the Czech Republic, the adoption of a child by a mother’s partner, and the registration of two same-sex parents in a Czech birth certificate.
Vojtěch Procházka: Equal Access to Marriage. Does the Czech constitutional order imply the right of same-sex couples to enter into marriage? The paper seeks to answer this question solely from the point of view of the prohibition of discrimination on the grounds of sex and sexual orientation and concludes in controversy with the opposing views expressed in the public debate that the same-sex couples are treated by Czech law less favourably, as compared to couples made up of a man and a woman, although they are able to fulfil the purpose of marriage to the same extent, while this difference in treatment is not sufficiently justified, according to the paper.
Šárka Dušková: Gender as a Public Matter – the Right to the Recognition of the Sexual Identity of Transgender People. The paper deals with the issue of legal recognition of gender identity by looking at the situation of transgender people in the Czech Republic. It shows that the conditions they must undergo for the recognition of their identity are based on the concept of sex which does not correspond to current scientific knowledge, and it in particular criticises the condition of sterilisation as in conflict with international law. It also describes examples of countries whose law recognises not only men and women but takes into account various human identities.
Andrea Baršová: Human Being Outside Femininity and Masculinity. (On Regulatory Models of Recognition or Non-recognition of Intersexuality.) As the Greek myths show, humanity has known since ancient times that there are people whose sex is not unambiguous. However, few legal systems have so far responded to this fact. If, however, in the light of the latest medical knowledge, the society believes that it is not factually or morally correct to maintain the view that people are divided exclusively into women and men, how can it respond to this finding in the legal sphere?