Implementation of central concepts

• Author: Genoveva Tisheva
• Pages: 12-27

12

3Implementation of central concepts

3.1General (legal) context

3.1.1Surveys on the definition, implementation 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 Compilation of reports from

a scientific conference on the Legal regulation, problems and trends of protection from

discrimination.14 Special attention in this Compilation from 2018 present several articles

of authors who tackle the issue of discrimination based 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 theprotected 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.

3.1.2Other issues

Among developments 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 conformity of an international

treaty signed by the Republic of Bulgaria on 21 April 2016 – the Council of Europe

Convention on preventing and combating violence against women and domestic violence

(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 meaning of some of these concepts, as well as contradictions to legal provisions 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 Council 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 of 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

65/07.08.2018.

16 Unofficial English translation of the ruling by UNICEF – Bulgaria – September 2018.

13

‘…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 the protection of certain rights of “transgender”

persons…’

‘…The Constitutional Court finds that despite its undeniable positive aspectsз the

Convention is internally contradictory and this contradiction creates duality therein.

Thusз the meaning of some of its provisions goes beyond the Convention’s stated

purposes and its title…’

‘…In Articleмгмдгaд and гbд of the Convention the term “women”з which is

undoubtedly based 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 French

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 grounds 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 their own legal existence. The term “gender”к“genre” exists within

the Convention as a separate category different from sex as a biological construct.

The Convention divides the biological and social dimensions of gender and goes

beyond the view of the gender binaryof the human species. With the meaning

specified in Article огcдз “gender”к“genre” becomes a fundamental term that also

defines the meaning of other phrases used inthe Convention and based on this

term…’

‘…“Gender” is used in the phrases: “gender equality” гPreambleдз “gender-based

violence” гPreambleз Articles нз оз пз мпдз “gender identity” гArticle пгоддз “gender-

sensitive policies” гArticle сдз “gender perspective” гArticle сдз “non-stereotyped

gender roles” гArticle мпдз “gendered understanding of violence” гArticle муз Article

пфгнддз “gender-based asylum claims” гArticle слдз “gender-sensitive interpretation”

гArticle слгнддз “gender-sensitive reception procedures” гArticle слгодд. These

phrases, depending on the interpretation, may lead to different and contradictory

understandings of the philosophy of the Convention. The Convention is the first

international treaty signed by the Republic of Bulgaria which gives such a definition

of the term “gender” гArticleогcд of the Conventionд……’

‘…The …acts of the Council of Europe aimed 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 understanding of the ability of people to self-determine their gender; as

well as to ensure full legal recognition by the State of the gender reassignment….’

‘…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”зtranslated into Bulgarian as “з 

 ” г“sex-based identity”д indicates that the terms are connected and should

be understood through one another. The term “gender”к“genre” with the meaning