Implementation of central concepts

• Author: Iustina Ionescu
• Pages: 8-24

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3 Implementation of central concepts

3.1 General (legal) context

3.1.1 Surveys on the definition, implementation and limit s of central concepts of gender

equality law

No surveys and/or reports have been published in Roman ia over the last five years which

provide insights into the legal definition, implementation and limits in Romania of central

concepts of gender equality law, i.e. sex/gender/transgender, direct and indirect sex

discrimination, multiple and intersectional discrimination, positive action, harassment and

sexual harassment or instruction to discriminate.

3.1.2 Other issues

One of the particularities of the Romanian legal framework in the field of gender equality

is fragmentation. The central concepts are regulated on the one hand in the Anti-

discrimination Law (the general law that applies to discrimination on all grounds, including

sex/gender) and on the other hand in the Gender Equality Law (the special law that applies

strictly to discrimination on the ground of sex/gender). Most of the times, th e definitions

are similar, but this du plication creates confusion and, in some instances, it means lower

protection against discrimination on the ground of sex/gender, compared to other grounds.

The Gender Equality Law provisions prevail in relation to the Anti-discrimination Law,

because they are considered special law. For example, the Gender Equality Law has lower

administrative fines compared to the Anti-discrimination Law.

3.1.3 General overview of national acts

The main law that contains provisions regulating the central concepts in the field of gender

equality is Law No. 202/2002 on equal opportunities for women and men (hereafter

Gender Equality Law). This law is complemented by the Government Ordinance No.

137/2000 on the prevention and c ombating of all forms of discrimination (h ereafter Anti-

discrimination Law) that contains similar central concepts applicable for all grounds of

discrimination, including sex/gender. Because the administrative body that is the most

active in applying the law in cases of complaints of sex discrimination is one and the same

for all grounds of discrimination, the National Council for Combating Discrimination

(Consiliul Naional pentru Combaterea Disc riminrii (CNCD)), the above-mentioned

confusion h as been handled by appl ying prima rily the Anti-discrimination Law, with the

Gender Equality Law being complementary. This approach is more favourable to the

victims because the level of protection provided by the Anti-discrimination Law is higher

than that contained in the Gender Equality Law. The downside of this approach is that the

Gender Equality Law is less frequently used and courts and national equal ity bodies are

not developing the case law of the Gender Equality Law.

3.1.4 Political and societal debate and pending legislative proposals

In 2018-2019, th e impartiality of the CNCD became the subject of public debate, after a

series of decisions issued by the national equality body in which the CNCD punished

political leaders or opinion leaders for declarations against female politicians from th e

Government Party (Social Democratic Party (Partidul Social Democrat (PSD)). Despite the

CNCD having been established as an independent body, its members receive their

mandate from the Parliament, which in practice uses a political algorithm where each

political party appoints a number of members based on political power.

The most widely discussed decision was the one concerning the PSD prime minister, Viorica

Dncil. In January 2018, the CNCD punished a journalist for comparing the prime

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minister’s hairstyle with a monkey (EUR 20 0 (RON 1 000) fine for sex discrimination).11

The Court of Appeal of Bucharest (Curtea de Apel Bucureşti) overturned the decision,

finding that t he statement was not anti-wom en; it criticised the CNCD for not explaining

how the fact that the prime minister is a woman determined the behaviour of the journalist

or how the journalist would have behaved differently if she were a man.12 The court found

that the statement referred to aesthetics, an e lement of private life that politicians who

present themselves to the public may be criticised about, even in harsh terms, by a

journalist. In 2019, the CNCD jurisprudence improved to some extent because this time,

they found political leaders liable of sex discrimination when they made public remarks

associating alleged professional or political incompetence or inadequacy with the g ender

of PSD women leaders.13

Another area that was the subject of public debate in 2018 was opposition to what has

been called ‘gender ideology’. A vocal minority of religious-based non-governmental

organisations that present themselves as ‘concerned parents’14 and individuals working in

academia (primarily theologians)15 have made a series of criticisms of the Government for

measures based on what they call ‘gend er ideology’. This campaign has not tu rned into a

major political or societal concern because Romanians are more concerned about common,

day-to-day worries than theoretical, ideological issues. 16 Nevertheless, it has already h ad

a disabling effect on the administration, causing it to refrain from taking necessary, but

disputed measures – for example, the Ministry of Education wi thdrew a draft national

strategy on parental education because it was criticised by these groups for allegedly

promoting diverse families and not the nuclear family.17 The project aimed to teach parents

about positive practices in raising and educating children in order to address infant

mortality, poverty (esp ecially among rural children and Roma), child abandonment, the

impact of economic migration on children, teen pregnancy, vaccination and child neglect.

UNICEF and children’s rights organisations proposed the draft that was initially accepted

by the ministry.18 After vocal opposition from the Coalition for Family, the Orthodox Church

and the Romanian Academy, the Ministry of National Education dropped the proje ct.19

11 CNCD (2018), Decision 51 of 31.1.2018.

12 Court of Appeal of Bucharest (Curtea de Apel Bucureşti) (2018), Civil Judgment No. 2862/2018 of

19.6.2018.

13 CNCD (2018), Decision Nos. 386 of 3 July 2019 and 417 of 10.7.2019.

14 Platforma Împreun, Open Letter to the Prime-minister of Romania (Scrisoare deschis ctre Prim-ministrul

României), 19.6.2018, available at: http://platforma-impreuna.ro/scrisoare-deschisa-catre-prim-ministrul-

romaniei/.

15 Active News (2018) ‘Scrisoare deschis: Nou profesori universitari, în frunte cu printele Necula i Dr.

Pavel Chiril, denun teoriile gender adoptate de România prin Convenia de la Istanbul, cer îndeprtarea

„agresiunii la versetele Creaiei din hotarele acestui popor”’ (‘Open Letter: Nine university professors, lead

by Father Necula and Dr. Pavel Chiril, denounce the gender theories adopted by Romania through the

Istanbul Convention and demand the removal of “aggression against the verses of Genesis between the

margins of this nation”’), 2.3.2018, available at: https://www.activenews.ro/stiri-social/Scrisoare-deschisa-

Noua-profesori-universitari-in-frunte-cu-parintele-Necula-si-Dr.-Pavel-Chirila-denunta-teoriile-gender-

adoptate-de-Romania-prin-Conventia-de-la-Istanbul-cer-indepartarea-%e2%80%9eagresiunii-la-versetele-

Creatiei-din-hotarele-acestui-popor-149599.

16 The October 2018 Referendum was not validated because the voter turnout was only 21 % compared to

30 % which is the mandatory minimum limit.

17 Hotnews (2018), ‘Strategia de educaie parental, în centrul unui scandal. Prinii i sindicatele cer

Ministerului Educaiei s o anuleze: Pentru noi, conceptul de familie este definit în Constituia României,

nimic mai mult’ (‘The strategy for parental education, in the middle of a new scandal. Parents and trade

unions ask the Ministry of Education to cancel it: For us, the concept of family is defined by the Romanian

Constitution, nothing more’) 5.7.2018, available at: www.hotnews.ro/stiri-educatie-22550399-strategia-

educa-parental-centrul-unui-scandal-rin-sindicatele-cer-ministerului-educa-iei-anuleze.htm.

18 Hotnews (2018), ‘Prinii trimii la cursuri de educaie parental, când intr copiii la coal - prevede

Strategia naional de parenting, pus în dezbatere pe edu.ro’ (‘Parents sent to parental education classes

when their children start school – stipulated by the National Parenting Strategy, subjected to public debate

on www.edu.ro’), 12.6.2018, available at: www.hotnews.ro/stiri-educatie-22504787-document-strategia-

ional-parenting-lansat-dezbatere-ministerul-educa-iei-rin-sunt-trimi-cursuri-educa-parental-cnd-intr-copiii-

coal.htm.

19 Mediafax (2018), ‘Ministerul Educaiei nu îşi asum Strategia pentru Educaie Parental. Proiectul a fost

retras’ (‘Ministry of Education does not endorse the Strategy for Parental Education. It withdrew the

project’), 6.7.2018, available at: www.mediafax.ro/social/ministerul-educatiei-nu-isi-asuma-strategia-

pentru-educatie-parentala-proiectul-a-fost-retras-17346524. See also Adevrul (2018), ‘Epopeea