- The elimination of the Ministry of Gender Equality and the replacement of the Women’s Institute by the Institute of Women and Equal Opportunities; the absence of a consistent strategy on gender equality at the state level and an appropriate coordination between the central government and the Autonomous Regions. There are also some temporary measures missing, such as short-term goals and quotas. Both of which are aimed at correcting the inequality in those areas where women are underrepresented or disadvantaged.
- The persistence of traditional attitudes and stereotypes regarding the roles and responsibilities of women and men in the family and in society. The Committee emphasizes that the roots of gender-based violence are concealed in many of these stereotypes and they insist on the lack of positive images in the media of women from ethnic minorities, Roma, migrants and women with disabilities. Consequently, they urge Spain to implement a comprehensive plan against stereotypes, which is based on clear and specific educational programs, as well as more effective awareness campaigns.
- The prevalence of violence against women and its effect on children. In the report, they also criticize the deterioration of support services for battered women, in addition to the fact that laws have not yet been revised. Moreover, there is a lack of training of judges and officials for cautiously implementing restraining and custody measures.
- The absence of a comprehensive law against human trafficking as well as a full/complete approach to the phenomenon of prostitution.
- The low participation of women in public and political life, particularly in decision-making positions in the Autonomous Regions, in the diplomatic service and in the judicial branch.
- The absence of an appropriate education in sexual and reproductive health after the removal of the subject “Education for Citizenship and Human Rights” in the Spanish educational system.
- The disproportionate impact of austerity policies in the workplace, which have already led to an increase in female unemployment, the impact of the wage gap between women and men and the precariousness of the jobs they occupy.
- The exclusion of immigrants in an irregular situation from the universal healthcare system has had a disproportionate impact on women’s health, particularly in the sexual and reproductive fields.
- The vulnerable situation of women who suffer intersectional discrimination, especially Roma, migrant, elderly and disabled women.
- The non-implementation of a gender perspective in the regulation of asylum, so as to take into account the special vulnerability of women who are persecuted in their countries due to gender reasons.
- Court decisions that continue to attribute custody of children to parents who have been accused of domestic violence.
2. The Dual Strategy of the Spanish Legislative Policies on Gender Equality: Positive Actions and Gender Mainstreaming
2.1. The Spanish Progress in Gender Equality
This Act will take up the recommendations of international bodies on providing a global response to the violence exercised against women. We can quote in this regard the 1979 Convention on the elimination of all forms of discrimination against women; the United National Declaration on eradicating violence against women, issued in December 1993 by the General Assembly; the resolutions of the last World Conference on Women held in Beijing in September 1995; resolution WHA49.25 of the World Health Assembly, issued by the WHO in 1996, declaring violence a priority public health problem; the European Parliament report of July 1997; the resolution of the United Nations Human Rights Commission of 1997; and the declaration of 1999 as the European Year for Action to Combat Violence against Women, among others. Just recently, Decision 803/2004/EC of the European Parliament approved a community program of action (2004–2008) to prevent and fight violence against children, young people and women and protect its victims and groups at risk (the Daphne II program), which sets out the stance and strategy on this issue of the representatives of Union citizens.
2.2. The Commitment to Gender Equality of Regional Institutions
In the context of the European Union there have been numerous directives, recommendations, resolutions and decisions concerning equal treatment and opportunities for women and men, and they have also developed various community action programs for equal opportunities. The Amsterdam Treaty approved by the European Council in Amsterdam on 16 and 17 June 1997, in its amendments to the Treaty of Rome dated 25 March 1957, established within the European Community, includes in its Article 2 a specific reference to equality between men and women as a mission of the Community. Likewise, in paragraph 2 of Article 3 the objectives of eliminating inequalities between men and women and promoting equality are incorporated; these objectives must inspire all Community actions and policies. We also have to point out that articles 20 and 21 of the Charter of Fundamental Rights of the European Union establish both the principle of equality before the law and the prohibition of discrimination. Moreover, the Charter contains a specific article, number 23, dedicated to equality between women and men and positive actions as compatible measures to equal treatment. There are also some specific Community rules, such as Directive 2002/73/EC of the European Parliament and of the Council dated 24 September 2002 on the application of the principle of equal treatment between men and women regarding the access to employment, vocational training and promotion, and working conditions and Directive 2004/113/EC dated 13 December 2004 which establishes the principle of equal treatment for men and women applied to the access to goods, services and supply and Directive 2006/54/EC of the European Parliament and of the Council dated 5 July 2006 on implementing the principle of equal opportunities and equal treatment for men and women in matters of employment and occupation.”
3. The Fragility of Gender Mainstreaming
3.1. The Definition of Gender Mainstreaming
3.2. The Implementation of Gender Mainstreaming in Spain
4. The Weaknesses of Equality Laws in Spain
4.1. The Equality “Paralyzed”
“So, on the one hand, the approval of various equality laws in the regional context has been paralyzed and, on the other hand, the protection of pregnant women and the right to life has been included on the political agenda. These topics have been incorporated into regulations, which represent a paradigm in relation to the preceding laws, since they focus on the role of women as mothers, limiting their ability to make decisions regarding abortion and completely obviating the transformation of gender roles. Besides, the central government initiated a reform process of the abortion law in order to significantly restrict this right” (, p. 38).
“The proposal for a law on equal treatment and non-discrimination on multiple inequalities, which was presented in January 2011 to complete the transposition of the EU legislation on equality, has been left out of the political agenda as it is now focused on austerity measures. Similarly, the extension of paternity leave from two to four weeks to come into force in 2011 suggested by Zapatero in the Act 9/2009 has been stuck on the grounds of the economic crisis. Labor rights and the Act on the Promotion of Personal Autonomy and Care for Dependent People have also been cut in different ways, to the detriment of equality. The possibility to enjoy the rights to combine work and family life has been reduced by Act 3/2012 of July 6th, on the Labor Reform” (, p. 28).
4.2. The Predominance of Soft Law
“This is a law whose purpose is to propose, not to impose certain behaviors or practices; that is, a right that tries to seek the voluntary adherence of the varied regulatory subjects to whom it is addressed due to its nature (...). The value and functionality of the soft law lies in its ability to generate new forms of cooperation, participation and integration in contexts and relationships in which various subjects, interests and levels of regulation converge; in addition, they are also opened to strong uncertainties and changes to which the administration has difficulties of legitimacy to regulate them.”
“Using soft law or hard law depending on the case has helped the State to carry out an important process of action on gender equality with legitimacy in specific contexts which do not always find constitutional support. We have used this technique within all its limits in order to legitimize the actions of public authorities, without the responsibility of a regulation integrated in the hierarchic system, as they displace the capacity of private actors to decide and to regulate. If the subjects mentioned in the law had taken the soft law as a guide to take action, as it has happened in other contexts (energy context, fiscal accounting in companies, Building Code), its normative and social effectiveness would have been guaranteed.”
4.3. The Formal Conception of Equality
4.4. The Man as the Prototype of a Subject
5. Conclusions: Parity and Gender Justice
- In a constitutional regime, in order to prevent what we have reported in the previous pages—namely, that equality policies depend on economic factors and political wills—it is necessary that the principle of parity democracy be constitutionalized. Only in this way will it be possible to meet the challenge that was settled the 1992 Athens Conference: “Women represent more than half of the population. Equality requires parity in the representation and administration of Nations. Women represent half the potential talent and skills of humanity and their under-representation in decision-making posts is a loss for society as a whole.” Gender mainstreaming is the key to achieving real parity democracy because it involves two goals: (a) the principle of equal treatment and opportunities for women and men will cross-sectionally inform the action taken by all public authorities; (b) The inclusion and participation of women in institutions and decision-making processes.
- The aim of equality does not only have a quantitative dimension: “parity is not about numbers. It is, however, a qualitative condition, the condition of being a peer, to be on par at the same level with others, to interact with them on conditions of equality” (, p. 196). Thus, it does not only mean that women and men are equal in the access to power and its exercise, but also that we have to review the status of citizenship itself. This is to “articulate gender as a theoretical category, as the analytical tool through which the division of social experience along gender lines tends to give men and women different conceptions of themselves, their activities and beliefs, and the world around them” (, p. 29)That is, the key to talking about parity democracy is not so much sex or gender, but rather the system of power that builds male and female subjectivities, the relations between them, as well as the opportunities of both for the exercise of their fundamental rights. From this point of view, parity democracy implies influence in the heart of the constitutional system, as it assumes reviewing its two main areas: power and citizenship. Therefore, it does not mean an attack on the liberal representative model, but rather a democratic development of structures that were created to respond to the interests of the white, male, and heterosexual man and proprietor. This implies a critical look at liberal democracy, as feminism has been doing for three centuries, or, in terms of a pact that “first excluded them de jure and then has maintained them excluded de facto” (, p. 45). An agreement, which is based on a supposedly hidden and hardly universal and abstract logic that says that there has always existed a privileged half, the male, in comparison with the female half, held in conditions of subordination . Overcoming these obstacles means returning women who had their own voice to the place from which they were excluded, i.e., the “original pact” with the constituent assembly (, p. 39). Only in this way could it be possible to achieve “parity of participation, that is, for each and every one to be able to participate “as full partners in social interaction” (, p. 225).
- The qualitative dimension of parity democracy needs to ensure not only the presence of women in the exercise of power, but also their ability to influence political decision-making processes. As rightly pointed out by the latest report by UN Women (, p. 52), a key objective to achieving real equality is to strengthen the power of action, the voice and participation of women. For this purpose, not just women but also men committed to a “feminist agenda” are needed; that is, breaking the constraints of this sex/gender system, which urgently requires changes to institutions, economic policies or relations between public and private sectors. Therefore, the commitment to a “gender agenda” implies “more ambitious and crossed aims: restructuring both state-public space (political decisions), and the public and non-state space (the market), even reaching the domestic field” (, p. 89). All this means taking gender mainstreaming seriously or “prioritizing the elimination of discrimination caused by a systemic structure which is just the sex-gender” (, p. 247). We should note that “modifying the agenda necessarily means something more complex, as more and more decisions are made outside the democratic public spaces, where gender mainstreaming has been spread. In this way, it seems inevitable that if you want to cause a change in the agenda, a top priority should be to restore the democratic decision-making spaces, where you give an explanation to the citizens and public priorities are chosen collectively” (, p. 90).
- Parity should be incorporated into constitutional regimes as a principle, that is, as an “optimization mandate”, which should consequently govern the actions of all public branches and, therefore, impact citizenship and relationships between individuals (e.g., in the field of market or labor relations). The incorporation of this principle would force countries like Spain to continue the work started by the legislature and which has had a disparate impact in practice. The last objective would be the reworking of a social contract that still relies on the previous “sex” model, and breaking with this traditional model of citizenship. This would entail a threefold process (, pp. 103–4): (a) breaking the dual structure of citizenship based on the dichotomy of public and private spheres; and (b) articulating a model of plural and diverse citizenship; (c) moving from “ciudadanía” to “cuidadanía”2. As Nancy Fraser (, pp. 164–65) posits, it is necessary to establish a social state based on a model of the individual—the universal caregiver—in which “the current patterns of women’s lives become the norm for everybody” so that “the sexist opposition between supplier and caregiver” would be dismantled and it would encourage men to perform this other activity too.
- As a result, it is necessary to consolidate a family model and productive relationships in which there is no longer a separation between the roles of the provider and caregiver, so that men and women are “supporters/caregivers in equality” (, p. 28). All this would have a clear impact on economic policies. In addition, we would hardly advance equality between women and men unless we work on economic structures that are perpetuating the inequalities. As it has been significantly pointed out by the latest report of UN Women, entitled “Transforming economies, realizing rights” (, p. 13), “to support the substantive equality, economic and social policies need to work in tandem. Typically the role of economic policies is seen primarily in terms of promoting economic growth, while social policies are supposed to address its casualties by redressing poverty and reducing inequality. But macroeconomic policies can pursue a broader set of goals, including gender equality and social justice. Conversely, well-designed social policies can enhance macroeconomic growth and post-crisis recovery through redistributive measures that increase employment, productivity and aggregate demand.” We should note that today “the prevailing macroeconomic analysis obviates the complex interrelations between formal, informal and domestic economy, as well as the economic role that women and men play in these areas. This determines the effect of every policy which is framed in such an analysis, whether expansive or restrictive—and therefore it is difficult to include a gender perspective in these fields.” (, p. 74).
“if we analyze the total variations in the state budget and in the budgets of the Autonomous Regions in the two periods before and during the crisis, we can see in the period 2002−2008 that, in every analyzed case, the budget for gender policies increased significantly reaching 57.2% statewide, whereas in the period 2009–2013 the budget decreased at all levels of the government (getting to −34.1% for the Central Government), with the exception of Andalusia where the budget for gender policies was increased by 15.5%” (, p. 28).
- It would be essential to establish an ongoing dialog between the government and civil society; between, for example, the administration and businesses, or between the representative bodies and citizens in order to develop, implement and evaluate these policies. Moreover, in countries like Spain, in which there is a territorial decentralization of power, it would be crucial that the principle of parity was present at every territorial level and that there would be an appropriate cooperation between them. We also have to keep in mind that, on many issues, the division of power between different authorities forces them to work together. Therefore, we should develop a governance of a “cooperative federalism”: “In this way, the process of learning across regions is not diminished, and the dissemination of policies and institutions also occurs. Moreover, the trend of cooperation has prevented duplication and has favored the implementation of complex policies as those related to gender violence” (, p. 75).
- The social changes pursued with the proposals mentioned above would not be possible, or in any case would have limited effectiveness, if they were not accompanied by cultural changes; that is, if parity democracy is not extended beyond the constitution and the law. The cultural sustenance of the changes that gender equality demands, is nothing more than overcoming the construction of male and female subjectivities and relations between both of them, which is marked by a hierarchical differentiation between each other, as well as the opposition between reason/emotion. As the European Commission stated in the Strategy for Equality between Women and Men 2010–2015, “the attribution to men and women of rigid gender roles can hamper individual choices and restrict the potential of both women and men. Promoting non-discriminatory gender roles in all areas of life such as education, career choices, employment and sport is thus an essential contribution towards gender equality.” For instance, changing these stereotypes is at the root of the fight against violence, as the Council of Europe Convention highlighted on preventing and combating violence against women and domestic violence, adopted in 11 May 2011 in Turkey: “Parties shall take the necessary measures to promote changes in the social and cultural patterns of behavior of women and men with a view to eradicating prejudices, customs, traditions and all other practices which are based on the idea of the inferiority of women or on stereotyped roles of women and men” (Article 12).
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