The Constitutional Court of Romania against Gender Stereotypes: A Landmark Decision on Gender Equality and Identity
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Marieta Safta
Titu Maiorescu University of Bucharest
In December 2020, the Romanian Constitutional Court (CCR) issued a landmark decision on gender equality and identity concerning a legislative initiative to amend the National Education Law.
The initiative, proposed by a deputy of the People's Movement Party (PMP) and an unaffiliated senator in November 2019, sought to prohibit any form of proselytism based on sex and gender criteria within the education system. With apparently fragile support in terms of initiators, and notwithstanding the negative opinions of the Commission for Human Rights, Religions and National Minority Issues and of the Commission for Equal Opportunities for Women and Men, as well as the rejection report from the Commission for Education, the proposal was adopted by Parliament in June 2020. A number of amendments were introduced during the parliamentary procedure. The final law established a prohibition inside all teaching establishments, institutions and facilities intended for vocational education and training (including those that provide extracurricular education) of any activity aimed at spreading the theory or opinion of gender identity, "understood as the theory or opinion that gender is a concept different from biological sex and that the two are not always the same" (article 7 of the Law, hereinafter referred to as the “impugned provisions”).
The President of Romania did not promulgate the law and referred it to the CCR due to several constitutional violations. In its Decision of December 2020, the CCR found, by a majority of votes, that the impugned provisions are unconstitutional. As the decisions of the CCR are generally binding, the effect was that the Parliament must bring the law into line with the constitutional provisions, which means eliminating the prohibition.
This decision stands out for the complexity of the recitals, which are a response – in my opinion – to the surprising radicalism of the impugned provisions, considering also the developments of the Romanian legislation in accordance with the Council of Europe and European Union (EU) framework. In this light, the decision of the CCR can be understood as educational in that it is intended to convey a strong message of awareness of equality and freedom as cardinal principles of humanism and democracy. This is the main reason I selected it as a landmark judgment, giving it priority over other judgments perhaps equally important for various other constitutional principles and institutions. Other decisions I might have selected include those reflecting the ”saga” of data retention laws cases of 2009, and 2014 - see further discussion here) or, more recently, the 2021 decision concerning the obligation of courts to draft and explain decisions in criminal matters on the date of the pronouncement.
An educational decision on gender stereotypes and equality
There are three main aspects of the CCR decision of 2020: firstly, the evolution of the interpretation of the principle of equality based on sex and gender in Romania, in a European context; secondly, the substantial body of fundamental rights and freedoms held by the Court to have been violated by the impugned provisions; and finally, the importance of legal certainty in view of the legislative incoherence created by the impugned provisions.
Principle of equality in the European context
The first aspect gives a special profile to the decision, due to the extent of the analysis carried out by the CCR: 27 paragraphs out of the 50 that compose the essential reasoning. The Court undertook ab initio a clarifying and educational role, specifying that it “will proceed to analyze the national normative framework in order to identify if and how the notions of ’gender’/’gender identity’ used by the legislator are reflected”. The CCR wished to examine the exact wording of the impugned provisions, in view of the statement of the legislator that “in recent years, a new gender ideology has appeared” (par. 56).
In doing so, the Court examined the provisions of the Constitution of Romania, of the Civil Code (on the concept of “sexual orientation”), of Government Ordinance No 41/2003 regarding the administrative acquisition and change of the names of natural persons (referring, inter alia, to the legal effects of changing sex), of Law No 202/2002 regarding equal opportunities and treatment between women and men – which distinguish and define the concepts of “sex” and “gender”, and of the Istanbul Convention on preventing and combating violence against women and domestic violence, ratified by Romania in 2016. The CCR found that Romanian legislation prohibits discrimination on the grounds of sexual orientation, provides legal recognition for people who change sex, and recognises a distinction between the concepts of “sex” and “gender”. Therefore, there are clear legislative provisions in line with the obligations assumed by Romania as a signatory party to international treaties relating to the field of “gender identity.” According to article 20 of the Constitution, the domestic legal system is connected to the international regulatory framework on human rights, and according to article 148 of the Constitution, to the European Union legal system. Furthermore, the evolving jurisprudence of the CCR – also detailed in the decision – reflects the changes over time regarding the social roles attached to women and men and the removal of gender stereotypes, following the reference case law of the European Court of Human Rights (ECtHR) and EU law. The CCR concluded that regulatory developments at the national, Council of Europe, and EU level – as reflected in the case law of the CCR, the ECtHR, and the Court of Justice of the European Union (ECJ) – support and highlight the fact that gender identity/gender equality is more than biological sex/differences thus combating gender stereotypes attached to the traditional approach to women’s and men’s roles in society. Consequently, the prohibition established by the impugned provisions contradicts the Romanian legal framework in a broad sense.
Fundamental rights violated by the amendment of National Education Law
The second aspect refers to the violation of various fundamental rights, which the Court examines one by one. In particular, the Court addresses:
the freedom of conscience and, thereby, human dignity (a legal constraint, “that can contradict opinions, beliefs or maybe even the gender identity that a person perceives, is contrary to human dignity in itself”: par. 83);
the equal rights, access to education, and the protection of children and young people (“the concealment/denial/repression of an opinion does not lead to its disappearance, nor can “protect” the individual from the alleged harmful effects that the State would like to prevent in relation to the education of children and young people”: para. 87; “the prohibition (…) does not serve the conscious assumption of a system of values necessary for personal fulfilment and development, being at the same time a violation of equal opportunities, as long as young people in Romania, citizens of the EU, are forbidden in their country to know/express opinions/study an area of problems and theories”: para.88),
the autonomy of universities and freedom of expression, with the prohibition of censorship (“the prohibition of free expression in relation to gender theory clearly determines the prohibition of any research initiative in this field, the criticized rule imposing, independently of any free debate or research, a dogmatic, truncated education, compelling for the free expression of teachers and beneficiaries of the educational act, ignoring their right to an opinion”: par. 95).
Importance of legal certainty
The third aspect of the decision is the argumentation by the CCR that the impugned provisions violate constitutional principles related to the rule of law and legal certainty, as well as the Constitutional principle that gives priority to more favorable international regulations in the matter of fundamental human rights (see art. 20 of the Romanian Constitution, mentioned above). The Court explains that having different laws treating the same situation differently creates a lack of coherence, clarity, and predictability in the law. It makes it difficult for people to ensure their conduct is lawful. In some cases, a person must comply with legislation that treats gender identity as distinct from sex and failure to comply may lead to sanctions. However, if they became law, the impugned provisions would mean that in educational areas, treating gender identity as distinct to sex may also lead to sanctions. This would make it impossible for a person to comply with the law, as they are caught in a paradox. The obligation to comply with the law, imposed by article 1(5) of the Constitution, becomes meaningless (see para. 100 of the judgment).
A bold manifesto against gender stereotypes
In summary, the decision of the CCR is a bold manifesto against the institutionalization of gender stereotypes. The decision is a plea for equality in all its complexity, for academic freedom and freedom in its deepest sense, and for the same values and legal certainty in the European space.
It is important to note in this context that the CCR also pronounced a crucial decision in a case concerning the exception of unconstitutionality of the article 277 of the Romanian Civil Code, (text according to which same-sex marriage is prohibited in Romania, and the same marriages contracted abroad shall not be recognized). The case was related to the recognition of a marriage lawfully entered abroad between a Union citizen and his spouse of the same sex, a third-country national in the light of the right to family life and the right to freedom of movement, viewed from the perspective of the prohibition of discrimination on grounds of sexual orientation, The CCR stayed the proceedings and asked the ECJ whether the term “spouse” in article 2(2)(a) of Directive 2004/38, read in the light of articles 7, 9, 21, and 45 of the Charter, include the same-sex spouse, from a State which is not a Member State of the European Union, of a citizen of the European Union to whom that citizen is lawfully married by the law of a Member State other than the host Member State..The Ruling in the Case of Coman v Romaniav, (which can be compared with the US Supreme Court's decision in Obergefell v Hodges, in terms of the rights of same-sex couples) the ECJ, established inter alia that ”article 21(1) TFEU must be interpreted as precluding the competent authorities of the Member State of which the Union citizen is a national from refusing to grant that third-country national a right of residence in the territory of that Member State on the ground that the law of that Member State does not recognise marriage between persons of the same sex”.
Based on the ECJ's ruling, the CCR issued Decision no. 534/2018stating that the provisions of article 277 (2) and (4) of the Romanian Civil Code are constitutional to the extent that they allow spouses, whether citizens of EU Member States or third countries, who are in a same-sex marriage concluded in a Member State, to have the right to reside in the territory of Romania under the conditions specified in European law. The preliminary referral and decision by the CCR are important steps towards achieving equality and non-discrimination in accordance with European standards. Regarding this issue, a citizens' proposal to revise Article 48 of the Romanian Constitution, which would have expressly stated that marriage is only between a man and a woman was initiated in 2016 and adopted by the Parliament on September 2018 (see discussion here). The proposal failed apparently due to a lack of interest among Romanian society, as demonstrated by the low turnout at the referendum to approve the constitutional amendment. Thus, the CCR invalidated the referendum, “since at least 30% of the number of people registered in the permanent electoral lists did not participate” (Ruling No.2/2018).
In this light, the CCR decision on the amendment of National Education Law demonstrates a consistent interpretation of the Constitution while protecting fundamental rights and engaging in dialogue with European courts either directly (like in the Coman case) or indirectly using the case law of these Courts. In my view, the decision also expresses the judge’s vocation as an educator. This decision is not about LGBT+ rights or specific individuals, but instead it speaks to everyone about the importance of equality and freedom. It is inconceivable to confine future generations to dogmatic beliefs. Education spaces should always be a place for free thought, research, and expression. The Constitutional Court's timely judgment reaffirms this.
Marieta Safta is a Professor at the Titu Maiorescu University of Bucharest Faculty of Law
Suggested citation: Marieta Safta, ‘The Constitutional Court of Romania against gender stereotypes: a landmark decision on gender equality and identity’, IACL-AIDC Blog (16 Nov October 2023) The Constitutional Court of Romania against Gender Stereotypes: A Landmark Decision on Gender Equality and Identity — IACL-IADC Blog (blog-iacl-aidc.org)
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