Implementation of central concepts

AuthorGenoveva Tisheva
3 Implementation of central concepts
3.1 General (legal) context
3.1.1 Surveys on the definition, implem entation and limits of central concepts of gender
equality law
In the last five years there have been no surveys or reports published on the legal
definition, implementation and limits in Bulgaria of central concepts of gender equality law,
having a substantial impact on the theme.
As a good example of sources of legal interpretation of the concepts and practice of the
issue of discrimination, also including gender equality, is the Compilatio n of rep orts from
a scientific conference on the Legal regulation, problems and trends of protection from
discrimination.14 Special attention in this Compilation from 2018 p resent several articles
of authors who ta ckle the issue of discrimination bas ed on sex and gender. For example,
the article ‘Indirect discrimination in Bulgarian and European law’ identifies insufficient
knowledge and consequent gaps in the understanding of the concept also in Bulgarian legal
practice. ‘Some constitutional aspects of the protected ground of discrimination’ explores
the possibilities and limitations of the equality clause of the Constitution. ‘Equality policies
as “hostage” of hate speech’ links the standards on education on gender equality in
universities with the limitations imposed by fierce hate speech in Bulgaria in about the last
two years. Some more general issues discussed are the burden of proof, the independence
of equality bodies, etc.
3.1.2 Other issues
Among development s in 2018, it is worth mentioning the interpretation given by the
Constitutional Court of the Republic of Bulgaria of the concepts of sex, gender and
transgender in the motivation part of Ruling No 13 from 27 July 2018, issued on
Constitutional file No 3/2018. The ruling was held on the confor mity of an international
treaty signed by the Republic of Bulgaria on 21 April 2016 the Council of Europe
Convention on pr eventing and com bating violence agai nst women and domestic violenc e
(the Convention), done on 11 May 2011 at Istanbul with the Constitution prior to the
ratification of this treaty.15
The interpretations of the concepts by the Constitutional Court go far beyond the mandated
task and concrete questions under the mentioned case and they represent restrictions of
the mean ing of s ome o f these concepts, as well as contradictions t o legal pr ovisions in
force and to other legal practice. This Ruling was strongly influenced by public debates and
also by political pressure against the ratification of the Istanbul Convention by Bulgaria.
Here are quotations from the Ruling16 which are indicative of the restrictive interpretation
of the Constitution and of important concepts related to gender equality:
‘…In parallel with the policy of the C ouncil of Europe on protecting women against
gender-based violence and non-discrimination against women, the Council of Europe,
in a number of its acts, calls on the member states of the Council o f Europe to
explicitly prohibit discrimination based on “gender identity” in national non -
discrimination legislation and to include the human rights situation of “transgender
people” in the mandate of national human rights institutionsз with an explicit
reference to “gender identity” as a form of discrimination against women…’
14 Compilation of reports from a scientific conference on the Legal regulation, problems and trends of
protection from discrimination University of Economics Varna (in cooperation with the Institute of Legal
Studies to the Bulgarian Academy of Science and the Commission for Protection from Discrimination).
15 Constitutional Court ruling No 13, Sofia, from 27 July 2018 promulgated in State Gazette No
16 Unofficial English translation of the ruling by UNICEF Bulgaria September 2018.
‘…The foregoing clearly shows the link between the policy of Council of Europe on
preventing and combating violence against women as a form of gender-based
discrimination against women and th e protection of certain rights of “transgender”
‘…The Constitutional Court finds that despite its undeniable positive a spectsз the
Convention is internally contradictory and this contradiction creates duality therein.
Thusз th e meaning of some of its provisions goes beyond the Convention’s stated
purposes and its title…’
‘…In Article мгмд гaд and гbд of the Convention the term “women”з which is
undoubtedly b ased on the biological understanding of the sexes, is used to define
the subject of protection against all forms of violence and discrimination. At the same
time the legal definitions in Article 3(c) of the Convention (the English and F rench
textsд include the term “gender”к“genre”з translated into Bulgarian as “” г“sex”дз
with the following meaning: “socially constructed rolesз behavioursз activities and
attributes that a given society considers appropriate for women and men”. The term
“gender” has been translated into Bulgarian as  ” г“social gender”д only
in the provision of Article 4(3) of the Convention. In the Convention the terms
“sex”к“sexe” and “gender”к“genre” exist togetherз with “gender” being included
among the ground s of discrimination under Article 4(3) along with the biologically
determined sex “sexз gender ...”к“sexe, genre …”. Thusз gender as a biological
category г“sex”дз but also gender as a social construct г“gender”д determined by the
subjective perceptions and notions of the individual and of society about the role of
men and women, are elevated to autonomous and equivalent categories of the
Convention with th eir own legal existence. The term “gender”к“genre exists within
the Convention as a separate category different f rom sex as a biologica l construct.
The Convention divides the biological an d social dimensions of gender and goes
beyond the view of the g ender binary of the human species. With the meaning
specified in Article огcдз “gender”к“genr e becomes a fundamental term that also
defines the meaning of other phrases used in the Convention and based on this
‘…“Gender” is used in the phrases: “gender equality” гPreambleдз “gender-based
violence” гPreambleз Art icles нз оз пз мпдз “gend er identity” гArticle пгоддз “gender-
sensitive policies” гArticle сдз “gender perspective” гArticle сдз “non-stereotyped
gender roles” гArticle мпдз “gender ed understanding of violence” гA rticle муз Articl e
пфгнддз “gender-based asylum claims” гArticle слдз “gender-sensitive interpretation”
гArticle слгнддз “gender-sensitive reception procedures ” гArticle слгодд. The se
phrases, depending on the interpretation, may lead to diff erent and contradictory
understandings of the philosophy of the Convention. The Conv ention is the first
international treaty signed by the Republic of Bulgaria which gives such a definition
of the term “gender” гArticle огcд of the Conventionд……’
‘…The …acts of the Council of Europe a imed against discrimination and violence on
the basis of sexual orientation and gender identity clearly serve to clarify the meaning
of the terms “gender” and “gender identity” in the context of the approach of the
Council of Europe to promote the understanding that the biological and social
dimensions of gender are not inextricably linked and exist independently of each
other; the un derstanding of the ability of people to self-determine their gender; as
well as to ensure full legal recognition by the State of the gender reassi gnment….’
‘…The analysis of the terms “gender”к“genre”з translated into Bulgarianз firstly as
” г“sex”д and secondly as “ ” г“social gender”дз and “gender
identity”к“l’identité de genre”з t ranslated into Bulgarian as “з 
  г“sex-based identit y”д indicates that the terms are connected and should
be understood through one another. The term “gender”к“genre with the m eaning

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