Download - juridikum, zeitschrift für kritik | recht | gesellschaft

thema
discrimination on the grounds of gender and religion in this
case? 13
It seems quite obvious that discrimination on the ground
of religion is direct: The wearing of a headscarf is an expression
of religiosity; accordingly religion is directly at play. 14
But how about discrimination on the ground of gender – is
it also direct in such a case? Labour law specialist Michaela
Windisch-Graetz has recently discussed whether the prohibition
of the Muslim headscarf could be construed as a case
of direct discrimination on the ground of gender in analogy
to the case of pregnancy since only women can be affected
by such a measure. 15 Indeed, such an analogy is worthy of
consideration. Windisch-Graetz herself rejects the analogy
after an analysis of the pertinent case law of the European
Court of Justice (ECJ), which spells out why discrimination
on the ground of pregnancy equals discrimination on the
ground of female gender. I shall now review the relevant ECJ
decisions, trying to defend the analogy Windisch-Graetz has
brought up and repudiated.
In several cases, the ECJ had to decide whether pregnancy
is a phenomenon, which is characteristic of the members of
only one gender or whether pregnancy can be reconstructed
as an incidence that concerns men and women in analogous
ways. In this second sense the (potential) employer
in the case of Dekker had argued that pregnancy should be
regarded as a medical condition and accordingly as genderneutral.
16 The employer regarded the problem by referring
to its result: Being sick is a typical reason for being unable
to work; pregnancy renders a woman temporarily unable to
work, accordingly, pregnancy can and has to be treated as a
medical condition.
The ECJ has refuted this kind of reasoning by emphasizing
the exceptional position of pregnancies as occurrences,
which affect only the lives of women and which are to be recognized
in their distinctiveness. 17 Comparability with men is
not seen as necessary in order to arrive at the diagnosis of disadvantage
on the ground of gender; it is biology that counts
here. In the meantime, this case law has found its way into
the pertinent Directive, which explicitly states that “[l]ess
favourable treatment of a woman related to pregnancy or
maternity leave within the meaning of Directive 92/85/EEC
shall constitute discrimination” on grounds of sex. 18
Pregnancy is a fundamentally physical process; the respective
ability is a constitutive factor of being “female”.
This premise seems self-evident, even natural; however,
things are not quite that simple. Let us therefore have a closer
look. First of all it has to be established of that the connection
of a certain ability to procreate with femininity cannot
mean that a person who is or has become unable to become
pregnant is not to be considered female. When a woman
has her uterus and ovaries removed during an operation she
does not become “not female”. Yet, the last word has not
been spoken. Such procedures can also be interpreted differently,
when they are conducted in the course of a gender
reassignment procedure. Obviously, context matters. From a
legal perspective, the surgical and hormonal modification of
a body, combined with the respective gender identification,
constitutes a valid basis for a change of gender. 19
So far, however, any person who is able to become pregnant
is considered female. This view is a well-established
medical convention. Legal discourse refers to this convention
when it provides that a change of gender can only be
recognized when a person is unable to procreate in his or her
birth gender. Accordingly, from a legal viewpoint, discrimination
on the ground of pregnancy can in fact only apply to
a woman. And indeed, as is well established, pregnancy is
an option in the lives of women, which must be considered
as one of the main reasons for gender discrimination and
which can in principle affect every woman in the course of
her career, be it because she becomes pregnant or because
employers openly or tacitly assume that she might become
pregnant. It is for this reason that Windisch-Graetz comes to
the conclusion that the classification of discrimination on the
ground of pregnancy as direct discrimination on the ground
of gender intends to specifically get down to the root of
gender discrimination. This idea is, as she further concludes,
so specific that it cannot be universalized in order to include
other cases such as the wearing of a headscarf, which can
also only affect women. 20
However, we cannot stop short here. European law classifies
not only a disadvantage based on the physical process
of pregnancy, but also based on maternal leave as direct discrimination
on the ground of gender. Accordingly, the focal
point is a perspective of what is conducive to a woman as a
mother, which is part of a less physical and even more normative
concept of gender. Maternity as a specific performance
of femininity must not become the reason for discrimination
– this is the core of the norm. Referring to this conception we
can bridge to Islamic headgear: Wearing the headscarf in its
diverse variations is also a kind of normative perception of
gender. Somebody who does not want to employ a woman
wearing a headscarf wants to avoid employing a person who
embodies a specific kind of femininity. The disadvantage refers
directly to the way a gender is performed, in this context
against a religious background.
3. Consequences
Of course, arguments of this kind can be generalized. Occasionally,
in-house dress codes intend to secure the performance
of “attractive“ femininity according to common
13) The issue of ethnic origin, which may also
play a role, is not discussed here.
14) Windisch-Graetz, Kommentar zu § 19
GBG, in Rebhahn (ed.), Gleichbehandlungsgesetz
(2005), para 1.
15) Windisch-Graetz, Probleme der Mehrfachdiskriminierung
in der Arbeitswelt, Recht
der Arbeit 2005, 238, after footnote 6.
16) ECJ, Elisabeth Johanna Pacifica Dekker
v. Stichting Vormingscentrum voor Jong Volwassenen
Plus, C-177/88, Slg. 1990, I-3941,
para 10.
17) ECJ, Dekker, para 12; ECJ, Carole Louise
Webb v. EMO Air Cargo (UK) Ltd., C-32/93,
paras 24–25.
18) Art. 2 (7) para 3 Dir 2002/73/DC; Art. 2
(2) c Dir 2006/54/EC.
19) According to newest developments, e.g.
in Great Britain, it is not even necessary to
have one’s body modified in order to be recognized
as a member of the other gender. For
details, see Sharpe, Endless Sex. The Gender
Recognition Act 2004 and the Persistence of a
Legal Category, Feminist Legal Studies 2007,
57-84.
20) Windisch-Graetz, Probleme der Mehrfachdiskriminierung,
after footnote 9.
juridikum 2008 / 1 Seite 35