Militant Democracy Revisited: How to Defend Gender Equality from Enemies Within*

Anna Śledzińska-Simon

Professor at the Faculty of Law, Administration and Economics of the University of Wrocław.

This post argues that contemporary authoritarian projects extend beyond the capture of public institutions to the constitutional ordering of private and family life. In this process, they appropriate and invert the logic of militant democracy, deploying it against those portrayed as “enemies” of the nation. Gender equality provides a salient example, having become a central target of authoritarian politics. While such developments are often analyzed through the lens of democratic backsliding, they also expose the limitations of the classical conception of militant democracy. Its repertoire should therefore extend beyond the protection of political processes to encompass the defense of substantive constitutional commitments, including gender equality.

The Limits of Classical Militant Democracy

The question of how liberal constitutional democracy can defend gender equality against efforts to dismantle it from within scarcely featured in the early debates that shaped the theory of militant democracy. In the interwar period, women’s equality remained incomplete: although women had secured voting rights in a growing number of countries, substantial legal inequalities persisted, particularly in family and private law. At the same time, legal protection against discrimination based on sexual orientation was virtually non-existent.

The intellectual origins of this concept were shaped by Carl Schmitt’s account of sovereign power and Karl Loewenstein’s theory of militant democracy. They focused on who possesses the authority to decide upon the state of exception and what legal and political instruments a democratic state may legitimately employ to defend itself against its enemies. More contemporary accounts of militant democracy show that threats to liberal democracy also manifest themselves in attempts to replace constitutional government with emotional government and the rule of law with autocratic legalism or legal despotism. Yet these approaches often fail to recognize that such threats extend far beyond the capture of public institutions. Contemporary authoritarian actors also seek to capture and reshape institutions governing family, gender roles, and sexuality. In doing so, they seek to entrench hierarchical gender orders through the constitutionalization of disputes concerning private and family relationships.

Crucially, current developments reveal three tensions that expose the limits of the classical theory of militant democracy. First, liberal constitutional democracy itself emerged from a social contract structured by gender inequality. Even after embracing formal equality in the public sphere, liberal constitutional democracy largely tolerated hierarchical gender relations within the private sphere, therefore undermining women’s equal citizenship.

Second, contemporary authoritarian actors wage the “war on gender” in the name of values that enjoy broad democratic legitimacy, including the family, the protection of children, and national culture and traditions. Actors who reject democratic pluralism increasingly invoke the national interest - often understood in ethnic and cultural terms - as well as demographic concerns and the preservation of national identity in the context of migration. In doing so, they claim to protect the interests of the majority against perceived threats posed by cultural minorities. In practice, however, the purported national interest frequently reflects the preferences of an increasingly autocratizing political leadership.

Third, many issues now regarded as central to gender equality - including the legal definition of the family, reproductive autonomy, and gender-based violence - have only relatively recently come to be understood as questions of equality. Substantive gender equality requires addressing structural barriers and challenging harmful gender stereotypes. Yet the relationship between these issues and gender equality remains contested. The debate over whether bans on the wearing of the burqa are better justified by gender equality or constitutional secularism illustrates the ambiguous boundaries of gender equality as a constitutional principle.

Taken together, these tensions reveal the limitations of liberal democracy itself. Authoritarian actors are not merely capturing institutions. They are also constitutionalizing a hierarchical conception of the private sphere. More fundamentally, this constitutional contestation exposes the limits of liberal democracy’s capacity to defend itself against actors who invert the logic of militant democracy.

The Authoritarian Inversion of Militant Democracy

Today, authoritarian actors have not only appropriated the language of human rights but also inverted the logic of militant democracy. They employ a similar justificatory framework to defend an exclusionary conception of constitutional identity against claims of equality and pluralism. Above all, they portray social change as an existential threat to the political community, revealing the persistence of a social contract structured by gender inequality. Often supported by transnational networks and domestic religious organizations, they present issues concerning the family, sexuality, and gender not as matters of ordinary politics, but as constitutive elements of an allegedly immutable constitutional identity. This move recasts contested questions of social and political ordering as expressions of a Schmittian constitutional core. By invoking constitutional identity and sovereign self-determination, they recast contested political preferences as ostensibly pre-existing constitutional commitments.

In Central and Eastern Europe, examples include decisions of the Bulgarian Constitutional Court concerning the legal recognition of transgender identity and the ratification of the Istanbul Convention, which have defended a hierarchical, traditional gender order against claims of equality. In Hungary, the consolidation of the traditional values and gender order was embedded in the new Fundamental Law adopted in 2011. Elsewhere in the region, these commitments have been advanced through constitutional amendment proposals and referendum campaigns concerning, among other things, the definition of marriage and the family, as well as the rights of LGBT persons.

In these processes - including constitutional interpretation, constitution-making, proposals for constitutional amendment, and broader constitutional debates - the family, the protection of children, and, above all, the survival of the nation are recast from questions concerning fundamental rights into expressions of constituent power. They are thus presented as sovereign decisions concerning the boundaries of the political community and, consequently, as matters of national sovereignty. This inversion of militant democracy rejects the premise that international human rights law may legitimately constrain sovereign decisions concerning which forms of social organization deserve constitutional protection. It similarly rejects the premise that the shared values of the European Union should take precedence over such constitutionally framed choices.

A prominent example is Hungary’s introduction of the so-called “LGBT propaganda” ban, modelled on Russian legislation adopted under Vladimir Putin. The measure illustrates broader patterns of state-sponsored stigmatization and political homophobia, used to institutionalize discrimination and reject value pluralism. In Commission v Hungary (Case C-769/22), the Court of Justice of the European Union held that these measures were incompatible with EU law. The significance of the judgment lies in the Court’s refusal to treat constitutional identity as a justification for undermining the values enshrined in Article 2 TEU. Rather than merely applying the standard proportionality test, the Court affirmed that Article 4(2) TEU cannot be invoked to preserve national constitutional arrangements that conflict with the Union’s foundational commitments to equality and non-discrimination.

Against this background, gender equality should no longer be understood merely as one constitutional value among many. It has become a site at which the very character of constitutional democracy is contested. Contemporary theories of militant democracy must therefore address not only institutional resilience but also normative resilience: the capacity of constitutional orders to resist projects that seek to dismantle equality and preserve gender hierarchies while claiming to defend democracy, constitutional identity, or the nation.

If contemporary authoritarian constitutionalism advances through the constitutionalisation of the private sphere, a renewed theory of militant democracy must confront a central theoretical dilemma: how can constitutional orders resist authoritarian constitutionalism without reproducing the exclusionary logic they seek to oppose? Such a theory must protect gender equality, without imposing a single worldview on society. Its purpose should be to preserve the conditions under which questions concerning private life remain open to democratic contestation, while preventing the constitutional order from being used to deprive particular groups of equal status and rights. The repertoire of militant democracy should therefore be tailored to this purpose, combining safeguards against the constitutional entrenchment of gender hierarchies with robust protections for pluralism, including the openness of constitutional debate.

*This post is the result of research project no. UMO-UMO-2025/59/B/HS5/03001 funded by the National Science Center in Poland.

Anna Śledzińska-Simon is a Professor at the Faculty of Law, Administration and Economics of the University of Wrocław.

Suggested Citation: Anna Śledzińska-Simon, ‘Militant Democracy Revisited: How to Defend Gender Equality from Enemies Within’, IACL-AIDC Blog (1 October 2026), Militant Democracy Revisited: How to Defend Gender Equality from Enemies Within