Going Against the Tide: The Romanian Constitutional Court Rejects a Ban on Gender Studies

—Georgiana Epure, President of the Association for Liberty and Gender Equality, Romania and Elena Brodeală, postdoctoral researcher at the University of Zurich and Odobleja Fellow at the New Europe College in Bucharest

Despite a regional backsliding on gender issues in Eastern Europe, the Constitutional Court of Romania (“CCR” or “the Court”) has recently decided that a legislative proposal banning gender studies was unconstitutional, holding that “sex” and “gender” are distinct concepts. At a time when women’s rights and LGBT+ rights are under attack in many parts of the world, the Court affirmed the centrality of equality, non-discrimination and fundamental rights, as well as the primacy of international human rights standards in the debates around gender issues. 

The legislative proposal, which aimed to amend the National Law on Education and was adopted by the Parliament last summer, sought to ban “activities aimed at spreading gender identity theory or opinion” in all spaces assigned for education and professional training, including those providing extracurricular education. The “gender identity theory or opinion” was defined as “the theory or opinion according to which gender is a concept that is different from the biological sex and that the two are not always the same”. After a failed national referendum in 2018 aiming to explicitly define marriage as the union between a man and a woman in the constitutional text and, thus, enshrine gender stereotypes in the Romanian Constitution, this legislative proposal was part of conservative groups’ latest efforts to counter “gender ideology” – an umbrella term used to justify attacks on women’s rights and the protection of sexual and gender minorities. 

Amidst a national debate on the subject, the President of Romania refused to promulgate the law and requested a constitutional review. What is notable about the CCR’s decision is that despite the absence of any arguments regarding “gender” or “sex” (equality) in the President’s request for constitutional review, the Court began its reasoning by clarifying the meaning of the two concepts under the Romanian legal system. It highlighted that national law allows for changing one’s sex – thus recognizing that “gender” and “sex” do not coincide –, that the Civil Code references sexual orientation as an element of one’s sexual identity, and that the Law on Equality between Men and Women defines “gender” as a social construct that differs from biological sex – an aspect that was reiterated by the Court’s reference to its own case-law on granting parental leave to men in the military and equalizing the pensioning age between men and women.

Given that under the Romanian Constitution international human rights law and EU law override national legislation, the Court also stressed Romania’s obligations to respect and promote gender equality in accordance with EU law and the international human rights treaties it ratified, including the European Convention on Human Rights and the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (“the Istanbul Convention”). The Court’s (laudable) legal analysis of gender and the connection it drew between gender and the principles of non-discrimination and equality laid a solid ground for its explanation on why the proposed amendment was unconstitutional.

The Court found the legislative proposal unconstitutional for breaching: (1) freedom of conscience, (2) the principle of equality of rights (of those who want and those who do not want to study gender issues) in conjunction with the right to education and the protection of children and youth, (3) university autonomy, (4) freedom of expression and the prohibition of censorship, and (5) the rule of law (given that not only did the proposed amendment contradict existing domestic laws defining gender as a social construct different from sex, but it also contravened Romania’s obligations under international human rights law).

The Court’s holding that the ban on gender studies contravenes the rule of law principle enshrined in Article 1(3) and (5) of the Constitution is particularly noteworthy. The CCR stressed that the ban would make the legal standards on “sex” and “gender” incoherent and unforeseeable: people in Romania would not know which laws to follow – those prohibiting discrimination or the law prohibiting activities that counter gender-based discrimination and stereotypes. This conclusion stands in stark contrast with the 2018 decision of the Bulgarian Constitutional Court, which declared the ratification of the Istanbul Convention unconstitutional for breaching the principles of legal certainty and rule of law due to the Convention’s “ambiguous” definition of gender as a social construct.

Despite the dissent of two of the nine judges, the CCR’s decision, which is unusually detailed compared to other decisions of the Court on similar topics, is a step forward not only for LGBT+ rights and women’s rights in Romania but for human rights in general. However, a careful reading of the decision reveals a number of shortcomings in the Court’s reasoning. Notably, when discussing the breach of qualified rights, such as freedom of expression or freedom of conscience, the Court did not undertake a proportionality test despite Article 53 the Constitution requiring this. Similarly, when engaging with the argument on access to education and the protection of children and youth, the Court did not undertake a “best interests of the child” assessment, although it would have been not only appropriate but also a procedural requirement both under the UN Convention on the Rights of the Child and the National Law on Protection and Promotion of the Rights of  the Child. A more thorough legal argumentation could have granted this decision more weight and would have better discouraged future similar legislative initiatives that seek to restrict human rights.

(This work was supported by the University of Zurich’s Research Priority Program “Human Reproduction Reloaded”)

Suggested citation: Georgiana Epure and Elena Brodeală, Going Against the Tide: The Romanian Constitutional Court Rejects a Ban on Gender Studies, Int’l J. Const. L. Blog, Mar. 22, 2021, at: http://www.iconnectblog.com/2021/03/going-against-the-tide-the-romanian-constitutional-court-rejects-a-ban-on-gender-studies/