Die Ideologie des Gender im spanischen Recht
By JOSÉ LUÍS REQUERO IBÁÑEZ. Magistrate of the National Court
Is it possible to legislate a falsehood? If we look at the general theory of Law and, within this, to the theory of the sources of Law, the answer is affirmative. It would also be so if we would make use of the theory of legitimation of power, if that legitimation is merely based on a strictly formal approach.
Indeed, regarding the sources of Law there usually is the distinction between sources in a material and a formal sense. The formal are those sources by which Law is externalised, enabling us to speak of the Law, customs and general principles of Law and the different types of written regulations. Sources in the material sense refer to who has the power to dictate regulations, which move us to consider who has the legitimacy to do so.
Can who has full legitimacy to regulate, notwithstanding that legitimate power, legislate on a lie? Can he regulate life in community on the basis of a lie? Can Law resolve conflicts on that basis?
This is what I ask myself with this article: the role of Gender Ideology in our juridical order. And I do so because this ideology is already present in this order. It already constitutes a transversal, mainstream policy since it is not exhausted by a norm that regulates a specific aspect, but it rather impregnates the whole legal system and inspires the action of all public powers: the vision or perspective of gender must become present in all areas. The issue is in that such vision implies legislating on an anthropological falsehood. It means shaping our coexistence by getting Law to solve the conflicts in a juridical regime based on an ideological prejudice.
From what has been said so far, it is a must to reason out why I defend that Gender Ideology is a falsehood. I focus on some postulates that I summarize in the following points.
Sexuality as an option
For such ideology, gender has above all a cultural dimension, independent from the sex, alien to the nature of the person. Sexuality is not constitutive but optative: one is neither a man nor a woman, one chooses to be a man or a woman because being man or woman is just part of the existing “socially constructed roles”. The advance proposed by gender feminism is that women must free themselves from such “social construction”, hence there it is necessary to “deconstruct those socially constructed roles” that concretize themselves in the masculine and the feminine.
It represents a rupture with equitative feminism
Gender Feminism essentially seeks the disappearance of sexes, rather than their legal equalisation or the removal of discrimination in treatment and opportunities. If the objective of gender is that there are not sexes but options, then there will not be anymore a supposed superiority of one sex – the masculine – over the feminine. Gender Feminism thus constitutes a closed global vision, which if taken to the juridical arena demands the abolition of differences between sexes, a paradigm of which is the proscription of what is termed a sexist language, which has become an obligatory technique for the elaboration of norms.
Options are changeable. Going beyond the nature
Once cleared off the ontological principle of being man or woman, then it is the turn of talking about gender. But as a consequence of the optative character explained above, that option is not definitive and the person can change his or her role any time. Rebecca Cook declared in the Beijing Summit that “the sexes are not two anymore but five and hence we should not speak of man and woman but rather heterosexual women, homosexual women, heterosexual men, homosexual men and bisexuals”. So the range of possibilities for mutation is wide and varied.
The struggle against traditional conceptions
As has been explained above, Gender Ideology understands that the difference between man and woman is cultural and follows from the patriarchal exploitation of women. Hence, maternity is seen as an imposition deriving from women’s cultural role. Thus, the process of liberation of women must include ridding women of such servitude. This means a rupture from what is classified as the traditional family model. Traditional family is the big enemy of gender feminism because in this family no other role is left to the woman that the derivative of maternity. And so abortion, for instance, is an obvious part of this strategy of liberation, from the role assigned to women both in society and in the family.
The new basis of the family
From the point of view of Gender Feminism, the basis of family is not marriage, traditionally understood as the union of a man and a woman and open to procreation. The idea of complementarity between man and woman, father and mother, in family life and in the education of children, becomes just one among other possibilities. Now there is “marriage” between persons of the same sex and, together with “biological reproduction”, there is also that type of reproduction which is fruit of techniques of assisted fertilisation that allow – at least in appearance – for homosexual couples to have descendants.
Gender Ideology as a derivation of class struggle
The idea of “class” implies inequality. Therefore, from what has been explained about Gender Ideology and its aggressive language, it follows that the place occupied once in the Marxist universe by ideas of class struggle, the exploitation of the proletariat by the capitalist bourgeoisie – source, origin and cause of social inequalities -, is now taken by the differentiation of man and woman. Women take the place of the proletariat; the means of industrial production are now the “means of reproduction”.
The agenda of Gender Feminism
Gender Feminism has an agenda and in it language has a transcendental position as an instrument for action. Manifestations of this are varied: from the struggle against what is perceived as sexist language – which is translated into the elaboration of handbooks of “good manners” in legislating and dictating norms – to the use of militant terms and expressions. For instance, with the use of the term “gender” as opposed to “sex”, what is intended is the abolition of the idea that human beings are divided in two sexes. Along this line, for example, the use of reasoning based on heterosexuality is identified with compulsory heterosexuality, that is, with an imposition that forces the understanding that the human race is divided in two sexes.
Especially relevant are expressions such as “sexual identity” – meaning free sexual option – or the term “homophobia”, which dismiss traditional understandings of sexual relations or of the heterosexual nature of marriage. It is also relevant the use of the expression “reproductive or sexual health” to mean abortion and of “new forms of family” to forge the idea of the existence of other “family models” beyond not just marriage but also heterosexual union.
Together with language, Gender Ideology seeks to debug education and the media of any gender stereotype. Feminists not only intend to substitute “gender-specific” terms (man/woman) with neuter words1 Moreover, they want to remove differences of conduct and responsibilities between men and women in the family.
Gender Ideology and Citizenship
The analysis of Gender Ideology would be left incomplete if the debate on citizenship and the rights of citizens was not referred to. With regards to the unborn European Constitution, conversations have been started about a new idea of citizenship that does not refer to the rights already acknowledged, but to communitarianism or the republican idea of rights and liberties as opposed to their individualist understanding by liberalism. It is the we against the I, one is more of a citizen if one fights for rights within the State and not from outside. The political autonomy of everyone is accomplished through collaboration and cooperation among members withinthe State, as opposed to reaching this autonomy in an individual and isolated manner before the State. Taking part in self-government is then the essence of freedom and a dominant consensus is managed by basing coexistence in what is common to all.
This new form of citizenship would allow progression in several areas such as, for example, the “values of secularism”, which lead to a neuter, multicultural and religiously asexual citizenship, and in achieving a minimum of common ethics able to organise pluralism: it is secularism – and not another principle – that gives cohesion to a plural, multi-ethnic and multi-religious society.
It is in this area where gender politics find a fertile soil to grow, since its postulates are part of this new citizenship that one is told to share, deriving in two different ways. On one hand, that which gender politics has in common in its historical origins with the feminist movement: the incorporation of women into public debate, their participation in the regime of equality in public office and the reflection of the latter in measures of positive action to guarantee parity in the access to those offices and the composition of public organs. On the other hand, that which makes more reference to the incorporation of the principles of Gender Ideology as a hallmark of the new citizenship and the new citizen, which brings us back to the immense strategic relevance of educational politics.
Gender Ideology in the Spanish juridical order
Equality in our juridical order
Analysing the presence of Gender Ideology in our juridical order requires a double effort.2 Firstly, there are numerous norms in our juridical order which have assumed the principle of equality, with no discrimination by reason of sex (article 14 of the Spanish Constitution), this being a fundamental right which irradiates on the whole juridical order and which has been the object of extended interpretation and application by the courts. Secondly, along with these types of norms are others which, going a step further, follow the path marked by article 9.2 of the Constitution. This is, they reflect the mandate that public powers have to make equality real and effective, as well as remove whatever might prevent or difficult this equality to reach its plenitude. Within this category are the norms that establish measures denominated of discrimination or positive action.
In fact, our Constitution was not limited to include just the principle of formal equality (article 14), proper of the constitutionalist tradition, nor satisfied by configuring this principle as a especially protectable fundamental right (article 53,2). The Constitution went a step further with article 9.2. This precept, taken from article 3.2 of the Italian Constitution, contains a special dynamism by establishing, in what is relevant to us here, the “argument” for the public powers in our social and democratic state of Law: the promotion of equality and the removal of any obstacles that may prevent equality from being real and effective.
The constitutional mandate to proscribe discrimination by reason of sex and to advance towards equality would imply analysing what has been a significant part of the argument of our juridical order since 1978, although already beforehand – for example with the reform of the Civil Code of 2 May 1975 – the advance was started. To this evolution needs to be added the impulse given by the European Communitarian Law, as well as the work of interpretation carried out by national courts, the Tribunal of the Union and the European Court of Human Rights.
It is not the moment now to account for the complete doctrine of equality that the Spanish Constitutional Tribunal has progressively established over the years. In what concerns to this article, it is noted that the Tribunal has understood that article 14 prohibits the legislators to approve different regulations and legal treatments for people who are in the same situation;3 and that not all inequality violates the principle of equality, but only that which is discriminatory.4 The Tribunal has established an equality test to clarify when different treatment is admissible (objective and reasonable justification, proportionality and adjustment between the measures undertaken and the objectives pursued, consideration of the circumstances of time and place). Thus, according to this acquis of doctrine, laws intended for specific groups or sectors are considered constitutional (and here we could include all regulations in favour of women), in as far as they surpass and meet the requirements of the equality test.
Within this doctrine it has to be mentioned that the Constitutional Tribunal has progressively configured what could be termed the negative face of equality, which allows its formulation through another form of dealing with this fundamental right. I am speaking of the right to non-discrimination and particularly to non-discrimination by reason of sex, which is one of the so-called ‘suspicious categories’ or areas of potential discrimination. In this way, and just to mention some examples, the Tribunal has pronounced itself on the proscription of this discrimination at work, either by seeking the equalization of males in cases of unjustified advantages in favour of women,5 or of women that were the object of discriminatory treatment at work6, in their access to a profession or job,7 or in the pensions regime.8
In this struggle for real and effective equality, for non-discrimination by reason of sex, Spain walks at the pace that for a time now has been marked by European Communitarian Law. Being the procurement of equality a “mission” of the European Union (cf. article 2 of the Union Treaty), it becomes an inspiring general principle, fundamental in the EU’s legal order, in its objectives, and determining, in terms of their respect and guarantee by the states, the conditions and requisites demanded from potential new members. Equality as a principle also gains major relevance in European law because it allows the imposition of sanctions on member states if they were to fail in its observance (article 6 of the Union Treaty).
The principle of equality has been incorporated to the European Charter of Fundamental Rights and is the axle of the European Social Charter approved in 1989, as well as having become the basis of Directives incorporated in, for instance, the LO 3/2007, from 3 March. Meanwhile, the jurisprudence of the Court of Justice of the European Union (CJEU) has carried out an extensive interpretation of the somehow scarce basis of article 141 (in the past article 119), which refers to the equality between men and women in their retribution for the same job.
Following from what has been explained, one could speak of three stages, not just in the jurisprudence of the ECJ but also in the politics of the European Community, since such jurisprudential acquis goes hand in hand with a normative development. Thus, from a first stage that runs until the 90s and which dealt with equality in the workplace (cf. Defrenne verdicts), we move to a second one which focused on the advancements towards getting public powers to positively act in favour of women, through the adoption of structural measures that sought to augment the participation of women in different social activities as well as the equality between man and woman (cf. Verdicts given in the cases Kalanke, Marshall and Badeck). The third stage, the current one, still lacks jurisprudence. This stage is presided by transversality or mainstream policies, inaugurated with the 1995 Beijing Conference, and can be summarised by the automatic and systematic incorporation of gender issues into all institutions and government policies.
Analysis of some specific laws
Up until here the excursus on the juridical equality of man and woman, without discrimination by reason of sex.9 Now I will analyse other norms that in the Spanish juridical order exceed this particular manifestation of the equality principle so as to advance in the ideological understanding of the same, using Gender Ideology as a basis. Within the Spanish juridical order, I will mainly refer to those norms that have the character of law.
Of all the laws that will be explained, some openly support themselves on Gender Ideology. Others regulate aspects that are related to the execution of the principle of non-discrimination by reason of sex while presenting adherence if not inspiration to such ideology. In the latter case, investigate such inspiration is problematic, since it is not always easy to distinguish between cases of execution of the principle of equality of sexes as established by article 9.2 of the Spanish Constitution, from those other cases in which that policy of equality is inspired by Gender Ideology.
LO 1/2004 of 28 December, on Measures for Integral Protection Against Gender Violence
This law is the key to understand the irruption of Gender Ideology in our juridical order. The LO 1/2004 together with the new abortion law are those laws which most intensely provide legal effects to expressions such as ‘gender perspective’ and ‘gender impact’, habitual by now in our order.
It is necessary to differentiate two aspects in the analysis of the LO 1/2004: article 1 and the rest of the text of the law. This is so because the key to this norm is in the definition of what is understood by “gender violence”. From this definition the rest of the law’s provisions acquire meaning and, moreover, it enables us to understand what such vision of gender is for our juridical order. Therefore, there is on one hand the vision of gender taken to this criminal phenomenon, and on the other hand, how Gender Ideology inspires some active policies for the protection of women who are victims of violence.
Before getting into the analysis of this law, it is convenient to make patent that numerous norms had already been approved in this area before the promulgation of this law and, thus, this law is in a way not a novelty. Those norms are about violence against women or domestic violence.10 Therefore, it could be said that there already was in place an integral protection understood as the existence of a normative body that deals with the different aspects that relate to the material object of this regulation. The contribution of the LO 1/2004 is to unify in a sole norm the body of policies which refer to women, apart from opting for a clear judicialization of the problem of such violence and, above all, granting a new perspective to the issue: that given by Gender Ideology.11 The key is therefore in article 1, under which the object of the law is to “act against violence which, as a manifestation of discrimination, the situation of inequality and the relations of power of men over women, is carried out against them by those who are or have been their spouses or by those who are or have been related to them through similar relations of affectivity, even without cohabitation”.
It must be noted that the LO 1/2004 does not establish as its object violence against women but a more specific type of violence that has been described by the coined expression “gender violence”. The law also clarifies the basic elements that constitute gender violence. It is not enough with a physical or psychological aggression, manifested in threats, vexations, insults, etc. What puts this violence into the category of gender violence is an intentionality which takes us to the universe of the tenets of Gender Feminism. Thus this violence should answer a discriminatory purpose, should show a situation of inequality and that through such violence men seek to establish a situation of power over women.
The Explanation of Motives for the LO 1/2004 completes the determinations of article 1. It points that the object of the law is justified on one hand by the “special incidence” that “aggressions on women have in Spanish society”, and on the other hand because of the peculiar gravity of gender violence. The latter is the “most brutal symbol of the existing inequality in our society”, directed “against women by the mere fact of being so and for being considered by their aggressors as lacking the minimum rights of freedom, respect and decision making.” Thus, one of the basic areas of the object of the law is the relations between couples (Explanation of Motives I).
The importance of article 1.1 is patent, because the logic of the LO 1/2004 is that it is a block. That it only refers to women as victims of violence makes sense if it is defined beforehand what that violence is. Therefore the whole law depends on that concept; it is the interpretative key for the penal, organic and competential precepts. Certainly, in the types of the Penal Code, in general, they do not speak of “gender violence”, but they are all encompassed in this article.12
Thus, there is reason for criticism, since from what should be an area merely descriptive, aseptic, is passed to regulate an area apparently objective but which contains a definition based on subjective and ideological elements, besides introducing unduly the intentional element in the definition.
On the other hand, the LO 1/2004 takes the technique of positive actions or positive discrimination to all its determinations, especially regarding penal guardianship, and this has prompted the Constitutional Tribunal to pronounce itself on the issue. The LO 1/2004 was devised, in principle, only for the woman. Although, after having considered objections that were presented, and when it passed from preliminary Draft to Project, it was modified partly in order to include “vulnerable” persons as passive subjects. It still kept its fundamental objective, though: to regulate gender violence and not domestic violence. In any case, the doctrine of “positive action or discrimination” is not applicable to judicial guardianship since the criminal reality makes patent the existence of various types of domestic violence: that of “gender”, that against the elderly, that against minors, that against ascendants and that against siblings. Certainly, violence against those who are not women represents a smaller percentage, but an integral law of measures against violence – which contemplates areas of subordination – should not be prevented from being extended to those persons as well.
As it is known, the penal provisions of the LO 1/2004 moved judges to rise numerous issues about unconstitutionality, which has resulted in a doctrine favourable to this law from the part of the Constitutional Tribunal. It is not a question now of analysing the Tribunal’s doctrine, which focuses on the constitutionality of offering a qualified penal treatment to aggressions by men against women, and the justification of this. It is enough to indicate that the Constitutional Tribunal’s reasoning is based on the respect of the legislator’s monopoly to select specific behaviours for their consideration as criminal and apply a certain punishment to them. From this starting point, in itself unquestionable, it is accepted that the legislator has perceived women as insufficiently protected in the area of sentimental relationships and has decided to make use of the penal instruments in order to fight against the inequality of women in this respect (SSTC 59/2008; 45/2009; 127/2009 and 41/2010).
The Law 13/2005 of 1 July by which the Civil Code is modified in matters of the Right to marriage
“Marriage” for same sex couples is a focus of action for homosexual and lesbian lobbies, along the lines marked by Gender Ideology. According to the hallmarks of this ideology, already described, the Law 13/2005 impacts on something as fundamental and structuring for a society as it is matrimony, base of the family, removing one of its most essential characteristics: heterosexual union. To eliminate one of its hallmarks- heterosexual union- it walks in the sense advocated by gender ideology: destroy what is considered the „traditional model“ of family; remove of the matrimonial union any idea of a union based on nature, on heterosexuality, in order to base it on the convenience of the contracting parties. Matrimony as “only” heterosexual would prevent the execution of one of Gender Ideology’s main postulates, that is, that the sex of a person is not something natural but an optional choice. Thus the “model” of heterosexual marriage would compromise this freedom.13
So, a second paragraph is added to article 44 of this law, by which “marriage will have the same requirements and effectswhether the spouses are of different or the same sex”. From such provision any reference to “husband and wife” disappears from the Civil Code. These are substituted by “spouses” or – curiously enough – “parents”, which has its explanation in what will be mentioned regarding the Civil Registry. We are therefore facing a full-blown ideological operation that has been done on a weak juridical basis such as the invocation of article 9.2 of the Constitution, article 10.1 on dignity of the person and article 14. These justifications depart from an ideological a priori and intentionally ignore family law, the guardianship of minors and the matrimony, an institution -by the way- prior to the state and its Constitution.
Regarding the constitutionality of the reform,14 it is not trivial that article 32.1 of the Constitution is the only one which, when regulating a fundamental right, does not make use of expressions such as “the Spanish people”, “the citizens”, “the persons”, “all” or “all Spaniards”. Hence, it is not irrelevant that the only article that mentions man and woman – and the sexual diversity of people – is that which refers to matrimony. Certainly it could be said that the only reason for this is so as to make clear the principle of non-discrimination by reason of sex, which can be worked out from the subsequent declaration of full equality. However, that objective is met by article 14 of the Constitution.
On the other hand, even if one would appeal to the inexistence of a constitutional definition for matrimony, that fact does not mean that there is no legal definition. It is not that surprising that the Constitution does not define marriage: it also does not define what life is or what is an association, the honour or the domicile. But that there are not constitutional concepts for these figures do not mean that they are ready available for the legislator do define and redefine. It has to be understood that one cannot use the way of legal definitions so as to artificially alter the reach of constitutional precepts, introducing regulations based on definitions which modify the “master image” of an institute, making it lose its juridical recognizability. Hence, only the constituent power could change the concept of matrimony, through the process of a constitutional reform. Not even a Constitutional Tribunal could do this because it would prevent the political discussion of it and illegally remove the power of decision from the constituent power.
Moreover, there is not a single basis to legally sustain the idea that the previous regulation discriminated against homosexual people. There would have been a basis for this claim if this regulation had prevented homosexuals from getting married – with any person – only by reason of being homosexual. Questions doubting the constitutionality of the Law 13/2005 are more intense if we consider an implicit effect of the reform: the adoption of minors by homosexual couples, which compromises the integral protection which public powers have to guarantee to the children (article 39.2 of the Constitution), precisely if the nature of the union of the parents is contrary to the interest of the minor.
That interest is the guiding principle of adoption (Article 176.1 Civil Code, Article 21 of the UN Convention on the Rights of the Child and the Hague Convention on the Protection of Children and the Cooperation in matters of international adoption). In this way, adoptive filiation has as its model (as well as its limit) the biological filiation. That is why it is not possible to create a similar bond to that which would exist between two heterosexuals and their biological descendants, because two homosexuals are unable to have biological descendants. In any case, not admitting this adoption does not violate the principle of equality, nor is it unjustly discriminatory. Neither two siblings (male or female) nor two cohabiting non-homosexual friends can adopt for the reasons already pointed out, which shows that the impediment is not the sexual orientation but rather the structure of the relationship that adoption aims to create. Thus, homosexual couples are treated exactly in the same way as for example two siblings of the same or a different sex who jointly wish to adopt a child, or two friends of the same or a different sex who wish to do the same. These impediments do not imply a pejorative judgement against their fraternity or their friendship, and thus, in itself, neither against homosexuality. To sum up, since adoption is devised for the benefit of the adoptee, what matters are not the desires of the adopters but their suitability to exercise parental custody.
Nonetheless, aside from the issue of the constitutionality of the reform and even if there was no constitutional impediment, there are still other reasons that are contrary to this reform. Matrimony, as a juridical institution, has some hallmarks which the legislator – who is not omnipotent – should not alter. Positivist or normative criteria must be overcome, since marriage must not entirely be what the legislator says. The legislator deals with “a piece of reality”, something pre-existent. Matrimony is not a figure created by the norm, and thus the legislator should respect its “master image”, which is based on the difference between sexes and their complementarity. Matrimony reflects human being’s vocation to life in common, to develop the offspring, to agglutinate that core of basic conviviality that is the family, etc. This is not an ideological option but its consubstantial image.
Homosexual unions and heterosexual matrimony are realities radically different, impossible to compare. To say that a homosexual union is matrimony is impoverishing, creates confusion, leads to conceive the role of the legislator from the juridical uncertainty, and opens the door for a breakdown of the juridical order, since the inexistence of limits or constitutional definitions makes it unadvisable, for instance, that the legislator alters the master notion of stock corporation, trading, etc. In turn, the family law in general and marriage in particular, can not be sustained in a subjective tendency as would be the sexual. This is why whenever the juridical order gives relevance to a private issue like sexuality it does so focusing on what is objective and observable. Also, to what has been said so far, has to be added the lack of social functionality of homosexual unions. Heterosexual unions are structurally fertile while homosexual ones are structurally infertile. This makes the former socially relevant since they give birth to new citizens and thus assure the continuity of the society.
Apart from the foregoing, homosexual unions, either as matrimony or as civil partnership, affect another aspect as is filiation, which leads us to the techniques of in vitro fertilisation and their function for the achievement of another objective of gender ideology: the promotion of “non-biological reproduction”, that is, reproduction without sex. In this line, article 7.3 of the Law 14/2006 of 26 May on techniques of assisted human reproduction establishes that if a woman who got pregnant through these techniques “is married to another woman, and not separated legally or in fact, the latter can declare to the Responsible of the Civil Registry of the marital domicile, that she consents that the filiation is determined in her favour when the child of her spouse is born.’”
LO 2/2010 of 3 March of Sexual and Reproductive Health and of the Voluntary Interruption of Pregnancy.
This is probably the “star” law of radical or gender feminism. This norm satisfies one of its postulates: that the liberation of women goes though the liberation from their nature, which implies to be able to dispose of the child which is expected without depending on anyone, only on their free determination. Abortion stops being related to the life of a human being, of a third party, and becomes an issue of sexual health. A pregnancy, then a child, has to be at the entire disposition of the mother. Thus, the system of indications generally is overcome, even though therapeutic and eugenic indications are maintained, as will be explained below.
The criteria on which this new law is inspired are hence the interests of radical feminism, which always wanted to take abortion out of the Penal Code so as to give it a distinguished treatment, as a new norm of citizenship. This feminism wants abortion to be seen as something normal, unrelated to the value of life, only relatable to an act of disposition over one’s own body. We are facing a law for which aborting is neither good nor bad, it is an option, and its role is to ensure the realization of this new right. The objective is make abortion normal, of routine.
It is a law with an ideological vocation, which explains the facilities which it provides or that it has coincided with the facilitation of the free dispensation of the morning–after pill, without need of a prescription.15 It is all ideology: the idea is to inject into the consciousness of citizens that abortion is a manifestation of the dignity of the women, their autonomy, their intimacy, their freedom of thought and beliefs.
The objective of this law can be perceived by looking at its normative evolution. In 1985 abortion was decriminalized in three instances: in cases of grave risk for the physic or psychological health of the mother (therapeutic indication), in cases of risk for the child of being born with malformations (eugenic indication), and in cases of pregnancy resulting from sexual aggression (ethical indication). Decriminalize abortion in these three cases – as claimed and are claiming its defenders – does not mean being pro-abortion but rather opposing to that in exceptional, extreme cases, of collision between the interests of the mother and the unborn, the pain of the pregnant woman increases because of the criminalization of her conduct.
The Constitutional Court (cf. STC 53/1985), declaring the constitutionality of the 1985 law, sustained that it is admissible for the State to waive protecting the lives of unborn children in these cases, if their lives are being protected by other efficacious means. In other words: It was not about waiving to protect the life of the unborn, since the State has the duty to do so, but rather to protect it without getting into the arena of criminal law. In merely juridical terms this approach is neat and even admissible. Even more, before the 1985 law, few women were condemned for those abortions and were even able to benefit themselves from the defences and extenuating circumstances of the Penal Code. But we already know what has been the reality of this norm.
What contributes the LO 2/2010? It emerges during a situation of impunity that was guessed coming to an end. Spain had lived, with manifest breach of the above law, years in which it ended up becoming the centre of „abortion tourism“. And the expression is not mine but from the Council of the State.16 There had to be some reports of the Danish television and of the British press that showed that the Spanish reality was of free abortion, violating the law. This led to an investigation of the reality of abortion business, and judicial investigations showed the harsh reality that had been installed between us during this time.
The attitude of the Government has not been to guarantee the fulfilment of the law but rather to ensure legal backing for what was done until that moment with impunity: Its reaction has been to legalize the crime, and ensure impunity by identifying this with juridical security. The then Minister of Health affirmed, regarding the practice of abortions beyond the limits established by the 1985 law, and given the judicial investigations, that “we cannot go back to the times of the Inquisition, 500 or 300 years ago. The country that invented the Inquisition seems unwilling to forget it. It cannot be that there is a 5 or 6 per cent of people that want to be the inquisitors of the rest”. It was the ideal situation to reform the legislation and to start looking at abortion from the logic of Gender Feminism. And to this logic responds the law.
What has been explained above can be clearly seen in the text of the law, both in its Explanation of Motives as in its articles. Thus, the Explanation of Motives places the new regulation in the ambit of the realization by women of their autonomy, dignity and free development of personality. That is, ultimately, the sexual health of the Article 2.b), defined as „the state of physical, psychological and socio-cultural welfare related to sexuality, which requires an environment free of coercion, discrimination and violence“, synonymous of voluntary interruption of pregnancy, i.e. abortion, which term does not appear in any article of the new standard.17
From that starting point, abortion is regulated in the orbit of the logic of a maternity freely chosen. Thus the objective of the law is to guarantee those rights, that is, if a woman decides to abort, to do it „without interference from third parties“, in clear allusion to the servitudes of the system of indications. Since this is the approach, the authorities assume a position of guarantors, however not to safeguard the life of the nasciturus, but to create the conditions that enable women to exercise their rights and freedoms related to sexual health, in an entirely free, safe, and responsible manner, and on equal terms. As a consequence, the system of deadlines conceives everything with the logic that we are dealing with the unilateral decision of the woman, by which she is exercising a right.
In the articles, this model of „abortion without giving reasons“ follows from Article 3.1 and 2 and is confirmed in other aspects such as, for example, the regime for minors of 17 and 16 years, by deriving the regime applicable to them -as regards information and prior consent- from the general rules of the Law 41/2002, of 14 November, on autonomy of the patient [Article 9.2.c)]. In that law the regime for minors establishes that the guardian only intervenes if a minor is intellectually or emotionally unable to grasp the scope of the intervention; in cases in which the minor is between 12 and 16 the guardian is at least heard. In the case of a mature minorwho is neither incapable nor incapacitated and is emancipated or has sixteen years completed, does not fit the consent from the guardian, and only in cases of severe risk the parents are informed and their opinion taken into account.
The Abortion Law goes a step further, and the minor decides „exclusively“, in a way that shoves the parents aside, in a moment in which she needs most help. In any case, it is not specified what is understood by that „severe risk“ to which the Law 41/2002 refers to and which enables parents to intervene. Parental intervention is also dispensed in any case in which this could originate a serious conflict, constitute a risk of violence in the family, cause threats, coercion, maltreatment, or if it produces uprooting or abandonment. It is transmitted the idea of the oppressive family, though the reality is quite different: it is the man or the family who presses for abortion. With all of this, the doctor is left in a complicated situation, as mediator or responsible for the integration of the concept of „severe risk“.18
Being abortion thus understood as the real content of the so called sexual health, and therefore a substantial part of the tenets of gender ideology, the LO 2/2010 shows special endeavour for make these postulates radiate the action of the public powers and, especially, deploy their effects in the ambit of education.
Statutes of Autonomy: the case of the Statute of Catalonia
That the mandate to pursue a vision or perspective of gender is already part of our everyday rules, is something what is apparent in the norms of special relevance, for being part of the block of constitutionality, such as the Statutes of Autonomy. This is the case of the most recent: the Catalan and the Andalusian.
Let us look at the first, which orders in article 4.3 that the public powers of Catalonia must promote certain values, among them that of “gender equality“, expression that is not specified. In turn, Article 41 is devoted exclusively to the „gender perspective“. In its content, it orders the public powers to guarantee the fulfilment of the principle of equality of opportunities for women and men, the principle of transversality in the incorporation of the gender perspective in all public policies so as to reach real and effective equality and parity between women and men, and the struggle against all forms of violence against women and against acts of sexist and discriminatory nature, etc., precept which is completed by article 45.3 for the workplace and with article 153 regarding competencies, which grants the Generalitat (the Catalonian regional government) the exclusive competence of gender policies.
Article 41.5 is especially relevant because it elevates the postulates of Gender Ideology – very alive after the legislation on abortion – to a quasi-constitutional level. Thus, paragraph 5 reads that “the public powers, in the scope of their competences and in the cases foreseen by the law, must ensure that the free decision of the woman is determinant in all cases that might affect her dignity, integrity and physic and mental welfare, particularly in what concerns her own body and her reproductive and sexual health”. In its Sentence 31/2010 of 28 June, the Constitutional Tribunal declared the constitutionality of this precept, to which its critics attributed a violation of article 81.1 of the Constitution –reserve of the organic law – and which leaves the life of the nasciturus without protection and in indetermination, since it understood that the precept is limited to a mandate directed only to the Catalan public powers, thus in the area of their competences and of the cases contemplated in the law. As to the competences, it is not noticed an excess regarding article 147.2 of the Constitution, in relation to article 81.1 CE.
More relevant is that the Tribunal affirms that „neither can be observed any contradiction with Art. 15 of the Spanish Constitution, nor can be inferred from the wording itself in article 41.5 of the Statute of Autonomy of Catalonia, given its generality and abstraction, an indetermination of protection, in terms duly constitutional, of the life conceived, as the appellants maintain. This without prejudice, as it is obvious, of the possibility to challenge, where appropriate, the eventual adoption of public policies that could be understood as contrary to the aforementioned fundamental right. But from the drafting of the precept in question not derive necessarily these policies, nor, more generically, any proclamation contrary to art. 15 of the Constitution, as revealed by contrasting the statements of one article and the other”. As can be seen, the Tribunal seems to be unaware of the full meaning of expressions such as those that refer to the freedom of women over their own bodies or that appeal to reproductive and sexual health.
We have a problem. Or more precisely, several problems which are real and objective: violence against women, discrimination, pregnancies of minors increasingly younger, and new generations that have educational deficits in tolerance, with respect to minorities, which becomes especially serious in societies increasingly complex due to the arrival of immigrants. I believe there is no question about this reality. This is why the authorities must endeavour to regulate everything that serves to prevent these problems and act on each of them. The question is whether the laws analysed here do so, and my response is very critical: more than solving the problems, these laws make use of them to introduce high doses of ideology. With such option, rather than advance in the solution of the problems what they do is worsening the situation: the priority is advancing in an ideological agenda.
All in all, and after this brief review of our juridical order, one might ask several things. For example, if these rules constitute the conscious assumption of gender ideology, or rather the uncritical and even unaware use of expressions that have entered into the universe of the language that is politically correct. Expressions such as ‘gender vision’, ‘gender perspective’ or ‘gender policies’ are already consolidated and part of a pseudo erudite, bureaucratic language, of common use but of whose background and reach people are not always aware of.
I do not exclude that often this might be the case, what is not exempt from criticism. But when these expressions permeate a legal norm, the consequences have already another dimension. It should be noted that the Civil Code establishes as a general interpretative criteria, for the whole juridical framework, that its norms ought to be interpreted “according to the proper meaning of their words”. Thus, from that proper meaning the result of the norms should be put “in relation to the context, the historical and legislative precedents and the social reality of the time in which they are to be applied, attending fundamentally their spirit and finality” (article 3.1). Thus, in law words must be handled with extreme caution.
It has already been explained how Gender Ideology responds to very clear ideological postulates, so when its jargon is used, it is to be assumed that the person who does it shares that ideological baggage. It s not a question now to expose the harmful consequences, in terms of transformation of reality, which this already normatized mentality inflicts in our society (trivialization of life, denaturalization of matrimony, real damage to heterosexual couples who want to adopt and see the doors closed to international adoption, greater rancour in cases of violence against women, etc.; the question is rather of counter-programming the agenda of Gender Feminism.
In this sense these expressions should be devitalized, their meaning mutated, in order to go falling into disuse, by recasting the „gender vision“ with what has always been the proscription of inequality, of discrimination by reason of sex. This in what refers to that uncritical use of such expressions. But there are other areas in which every change requires the modification of the legal normative: this is the case of the definition of gender violence, the entire law of reproductive and sexual health, the law of homosexual „matrimonies“ and everything that derives from these norms: from the Civil Registry to the content of regulated education. Those norms are glaring examples of an ideological enterprise that is conquering terrain to blow of laws, which can be counteracted only by derogating those laws.
Consequently, gender ideology is a faithful exponent of the ideological war in which we are mired; it is a cultural war, of the conquest of common sense, the perception and understanding of reality and the truth about the person. In the legal, this war calls for the pressing need for reinstating our juridical ordinances on the basis of the postulates of natural law as opposed to the postulates of anti-natural law.
I return to the question I asked at the beginning of this paper: can we legislate on a lie? The consequences of doing so are there: the juridical order is a twofold ecosystem. Firstly in itself, because altering the logic of a legal institution – for example, matrimony- produces consequences in everything that surrounds that legal institution. Secondly, because the recipient of the rule is a person and there is a human ecology. When the human ecosystem is polluted, the damages are obvious in terms of pain, death, loss of rights, etc. A principle of environmental law or environmental tributary law is that the polluter pays and does so in terms of contributing to restore the damaged environment. In the anthropological it is not like this: the polluter does not pay. Who pay are the polluted.
Given this reality I think it would be pertinent in the following years to prune the legal framework of such ideological prejudices, so as to insist on what is basic and fundamental: on the problems to which I have alluded before, and on proving -or simply showing- what are the consequences of not facing these problems and promoting ideology instead, and, having observed this situation, going in search of effective, achievable solutions. But this would already be the subject of other studies, one for each law analyzed.
Please consider it as an initial draft. I am not an experienced translator, as well as not very acquainted with either Spanish or English legal terminology. Thus, it would be advisable for an exhaustive proof reading and editing of this text to be carried out prior its reproduction, especially regarding the technical legal terms and names of institutions that are mentioned throughout it.
Enrique Requero, October 2012. email@example.com
1 For instance, see the Normas mínimas para evitar discriminación de la mujer en el lenguaje administrativo del CGPJ (‘Minimum requirements to avoid discrimination of women in the administrative language of the CGPJ’) approved by the Council’s Equality Commission on 19 June 2009.
CGPJ stands for Consejo General del Poder Judicial (General Council of Judicial Power).
2 On this point I follow CGPJ’s Report from 26 April 2006, on the draft of what would later become the LO 3/2007 of 3 March for the effective equality of men and women, a Report which I partially reproduce and for which I was speaker and editor.
3 SsTC 144/1988, 68/1991, 181/2000, among many others.
4 STC 100/1989.
5 SsTC 81/1982, 207/1987
6 SsTC 166/1988, 145/1991.
7 SsTC 216/1991, 229/1992
8 STC 103/1983.
9 Spain has incorporated EU law both in national and autonomic (regional) laws. Before the LO 3/2007 of 3 March for the effective equality of men and women, one has to mention the Law 51/2003 of 2 December, on equality of opportunities, non discrimination and universal accessibility of disabled people; the Law 39/1999 of 5 November, for the promotion of the conciliation of professional and family life of working people; the Law 62/2003 of 30 December on fiscal, administrative and social measures, or the LO 4/2000 of 11 January, on the rights and liberties of foreigners living in Spain, and their social integration. Among the autonomic laws focusing on the equality of men and women and precedent of the LO 3/2007, one could mention the Ley 9/2003 of 2 April, of the Valencian Autonomic Community, for the Equality of Women and Men; the Ley 7/2004 of 16 July, Galician, for the Equality of women and men, and the Ley 4/2005 of 18 February, for the Equality of Women and Men, approved by the Bask Parliament or the Ley 12/2006 of 20 September, for women, of the Balear Islands. After the national law, the Autonomic Communities have approved both new laws in this area, as well as reforming the mentioned ones.
10 Thus, from the Report of the Senate elaborated by the Commission of Relations with the Defender of the People and of Human Rights, commission in charge of studying mistreated women, there could be highlighted the LO3/89, on the reform of the Penal Code, and from the previous legislature, the LO 11/2003 of 29 September, on concrete measures regarding citizens’ safety, domestic violence and social integration of foreigners; the LO 15/2003 or 25 November, which modified the LO 10/1995 of 23 November, the Penal Code and the Law 27/2003 of 31 July, which regulates the ‘Order of protection of the victims of domestic violence’.
11 In the explanation of the LO 1/2004 I follow the Report from the 24th of June of 2004, of the General Council of Judicial Power on the draft of the law, Report for which I was speaker and editor.
12 Thus it is deduced, for example, in matters concerning suspension of sentences (article 83,1 of the Penal Code), substitution of sentences (article 88.1 PC); in the LOPJ when it determines the area of work of the Courts for Violence Against Women (article 87 ter) or in the LEC, regarding the competences of the Courts of First Instance or Family (article 49 bis).
13 On this point I refer to the Study of the General Counsel of Judicial Power, from 26 January 2005 on the Draft for the Law, study for which I was editor and spokesman.
14 An appeal against the Law 13/2005 was made to the Constitutional Tribunal on 25 October 2005 following the promotion of this by a group of fifty MPs from the Popular Parliamentary Group in the Representatives’ Congress (Congreso de los Diputados, the lower Spanish chamber) (cf. BOE of 15 November 2005).
15 On 21 October 2010, the Commission for Health, Social Policy and Consumption approved a request for the pill to be offered only with prescription, informing of its potential adverse side effects and for the freedom of objection of doctors and pharmaceutics to be guaranteed.
16 ‘However, experience demonstrates that because of either its inherent defects, its lax interpretation or its social evolution over the years since it was approved, the application of the 1985 law has taken Spain into an undesirable situation of free if not arbitrary abortion. Together with a highly noticeable increase on the number of legal abortions, there are still being practiced many others in conditions of grave risk for health. This regulation, which although decriminalised abortion it was still intentionally restrictive, has made of Spain the paradise for ‘abortion tourism’ and the place in the European Union where the number of abortions has increased the most’. Dictum 1384/2009 of 17 September 2009.
17 The term ‘abortion’ is only used in the First Disposition, as a consequence of the reform which it does of the Penal Code, and in the Explanation of Motives, but to refer to either the juridical situation prior to the new law or to quote international documents and Resolutions.
18 Regarding the development of consent of minors between 16 and 17 years of age, cf. article 8 of the RD 825/2010 of 25 June, of partial development of the Organic Law 2/2010 of 3 march.
© 2012 JOSÉ LUÍS REQUERO IBAÑEZ
Obs.: This article was first published in the journal Temes d’Avui, in Catalan.