1 Introduction

1The term “discrimination” has been used in constitutional and human rights law to both describe and support women’s demands. Since the 1970s, women have increasingly manifested an array of concerns regarding their private and public life: their sexuality, reproduction, family responsibilities, violence in intimate relations, their struggle to access the labour market, sexual harassment, democratic and political underrepresentation, and their lack of full citizenship. To address all these heterogeneous demands, the legal community’s main normative approach has been to suggest anti-discrimination laws. All the different manifestations of women’s mistreatment have been read as the differential treatment of women and men, which is precisely what is meant by inequality. Consequently, the law has had to be reformulated to offer identical statements for both men and women. In other words, formal equality needed to be achieved to overcome discrimination.

4According to my reading of Añón’s proposal, a critical shift in our legal perspective is required for improving the performance of legal judgments and decisions vis-à-vis women’s concerns. Such a shift would entail overcoming standards of discrimination based on a comparison between unencumbered individuals, without their situated agency being considered—which results in comparing even when such comparison is impracticable—in order to embrace a contextual analysis of individual cases. The move from one pattern to the other implies assimilating the structural bases of discrimination, as well as the relevance of gender analysis for overcoming inequality. In the following I would like to keep arguing in the direction traced by Añón. I will focus on the two main aspects of her analysis: the comparator and stereotypes. In addition, I will consider intersectionality and the contribution of experts, and will analyse in detail the methodology of naming and the contextual interpretation of women’s rights.

2 The comparator and the trap of individual facts

5Comparing equivalent situations is a complex task. Such complexity not only arises from the facts being different in every situation, even though the compared situations may be similar, but rather because everyone’s social background and perspectives on facts are also very different. Suzanne Goldberg (2011: 740) describes the success of the comparator methodology in legal analysis and the judiciary in terms of the good reputation of individual facts—better than that of social data and analysis—for ensuring truth, or as the acceptance of equating empirical proof with objective standards. However, comparing requires the presence of equivalent actors and situations to be compared, and these factors are hardly present in circumstances of structural subordination, which entail discrimination against entire groups of people. In such cases, mistreatment is based on multiple meanings and power relations that converge in every single situation. Añón (2020: §§ 22-26) exposes the inadequacies of the comparator methodology and proposes to move towards a broader analysis. I want to focus here on the misleading approach of discrimination law whenever it isolates individual cases merely as individual facts.

7Dolores Morondo (2016: 490-493) points to intersectionality’s capacity to unveil the inadequacies of discrimination law and the comparator methodology. Intersectionality—as will become clear in the next section—allows for a better refinement of the causes of discriminatory acts and conducts via the incorporation of new categories. According to Morondo, the intersectional approach reveals all the components of the power relationships that create disadvantages and ill treatment. Morondo endeavours to explain the failure of the comparator standard to capture the disregard of black women who suffered discrimination in their workplace. To do so, she analyses two illustrative cases in United States case law which have been reviewed in the literature on intersectionality, namely De Graffenreid v. General Motors Assembly Division (1976) and Jefferies v. Harris Country Community Action Association (1980). In those cases, it became apparent that, since neither black men nor white women had suffered the consequences of the contract policy as applied to black women, the latter could not be suitably considered to have been discriminated against, compared with either of the former two groups.

8In such cases, the comparator becomes an obstacle to identifying discrimination in relation to one-criteria categories, such as “women” or “black”. A better characterization of groups by more than one criterion proves to be a compelling requirement for properly identifying discrimination—in the aforementioned cases, discrimination against black women, as a separate group distinct from both black men and white women. Morondo poses the interesting question of what the limit to this multiplication of group categorizations may be, which might eventually lead to one-case categories. Perhaps the answer ought to come from the contextual analysis of individual cases and the structural configuration of groups in each society, based on power relations. Consequently, the categories should be as many as indicated by the structural configuration of each social context, so as to allow for the identification of the nuances of personal acts and behaviours.

3 Reasoning about gender stereotypes, intersectionality, and complementary methodological approaches

Gender stereotyping is both the cause and the manifestation of gender discrimination. Gender stereotypes are also used to rationalise/justify discrimination, which in turn further reinforces discrimination. The circle thus looks like this:

In the context of domestic violence, this circle goes as follows: most domestic violence victims are women. This situation is rationalised or justified by the authorities by gender stereotypes such as ‘women ought to be submissive’ and ‘women (ought to) endure men’s aggressiveness’. These ideals make that the authorities do not act at all on the violence, or act weakly (e.g. with lots of delays). This in turn causes domestic violence to continue with impunity, both at an individual level and in society.

[…] What the Court urgently needs to develop in terms of new legal reasoning is the idea that gender stereotyping causes discrimination (is the third part of the circle). (Peroni & Timmer 2016: 64-65)

10As a legal instrument, this analysis makes it possible to grasp the meaning of rules and rulings, as well as individual attitudes in specific cases. Disclosing the meanings and constraints contained in stereotypes entails unveiling what is hidden within a variety of historical, social and cultural customs, norms and conducts which are largely and very often unconsciously accepted. Therefore, grasping the hidden discriminatory meaning of many of these stereotypes requires naming the hidden. Rebecca Cook (2010: 565) suggests applying “the feminist methodology of naming to raise consciousness about gender stereotyping and to expose its harms”. According to Cook, naming is the way to diagnose how much and what harm is caused by stereotypes in different societies.

11Similarly, Timmer (2011: 710) points to the two stages of judicial analysis that courts like the ECHR should follow: “naming and contesting”. In order to unveil the hidden sources of discriminatory treatment, Timmer suggests that courts should delve further into the social and cultural context in which stereotypes have been conceived and used. History, traditions, and ongoing conducts and relationships within families, work, public institutions, and other settings should be unveiled and named. Naming entails a process of recognizing social phenomena—expressed through religion, the economy, and culture in general, and transferred to individual acts and behaviours—which have been normalized as universally accepted for too long. These phenomena, however, as in the case of gendered patterns of behaviour, have been consolidated as part of very asymmetric relations of subordination, i.e. power relations. Far from emerging from a collective process of fair communication and consensus, these phenomena have been established and perpetuated by the inertia of repeated individual and collective sequences of domination-guided conducts, crystalized into social structure. Therefore, the judicial process for unveiling the deeply rooted social structures which are reflected in stereotypes requires a thorough inquiry. During such an inquiry, courts should advance towards the uncovering of social phenomena by posing questions and asking experts to provide data, documents, and all sorts of materials that are likely to expose stereotypes (Timmer 2011: 721).

12To better understand the sort of discrimination that arises from social structures—long-consolidated by historical and cultural processes—intersectionality has proved to be a useful interpretative tool for overcoming the shortcomings of the comparator, as explained in the previous section. Although it is not directly included in Añón’s analysis, intersectionality is, together with stereotypes, another important conceptual device for contextual interpretation in cases of gender discrimination. Frequently, a variety of legal and interpretative tools are required in order to cast light on complex social situations which cause specific acts of discrimination. María Ángeles Barrère (2016: 462) maintains that gender as a category is very often insufficient for achieving a deeper understanding of the real dimension of specific acts or behaviours concerning women’s struggles. For such cases, intersectionality introduces a methodology that is capable of cross-referencing valuable information about the causes of discrimination.

13The European Court of Human Rights has made an indirect reference to intersectionality in the case B.S. v. Spain (2012), stating that a black immigrant woman working as a prostitute was in a situation of “particular vulnerability”, a circumstance which should have been recognized by the domestic administration in order to remedy discrimination. The ECHR ruling states the following:

62. In the light of the evidence submitted in the present case, the Court considers that the decisions made by the domestic courts failed to take account of the applicant’s particular vulnerability inherent in her position as an African woman working as a prostitute. The authorities thus failed to comply with their duty under Article 14 of the Convention taken in conjunction with Article 3 to take all possible steps to ascertain whether or not a discriminatory attitude might have played a role in the events.

14According to Cruells López and La Barbera (2016: 543-544), the concept of vulnerability instead of intersectionality—despite a number of reports made by experts asserting the presence of intersectional discrimination—is used with the intention of avoiding more sociological and technical terms, and to favour the use of an easy or comprehensive language. In addition, in recent years, the ECHR has developed an important doctrine on vulnerable groups, to which B.S. v. Spain can be added.

179. Despite the reforms carried out by the Government in the areas of the Civil Code and Criminal Code in 2002 and 2004 respectively, domestic violence inflicted by men is still tolerated and impunity is granted to the aggressors by judicial and administrative bodies. The applicant and her mother had been victims of violations of Articles 2, 3, 6, and 13 of the Convention merely because of the fact that they were women. In this connection, the applicant drew the Court’s attention to the improbability of any man being a victim of similar violations. (italics have been added)

17Also in Opuz v. Turkey, the Court made important statements regarding the burden of proof, evidence formation, and the use of statistics for demonstrating group discrimination:

177. As to the burden of proof in this sphere, the Court has established that once the applicant has shown a difference in treatment, it is for the Government to show that it was justified (see, among other authorities, Chassagnou and Others v. France [GC], nos. 25088/94, 28331/95 and 28443/95, §§ 91-92, ECHR 1999-III, and Timishev [v. Russia, nos. 55762/00 and 55974/00], § 57[, ECHR 2005-XII]).

178. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent State, the Court stated in Nachova and Others ([v. Bulgaria [GC], nos. 43577/98 and 43579/98], § 147[, ECHR 2005-VII]) that in prior proceedings there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. The Court adopts the conclusions that are, in its view, supported by the free evaluation of all evidence, including such inferences as may emerge from the facts and the parties’ submissions. According to its established case-law, proof may follow from the coexistence of sufficiently strong, clear, and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this respect, the distribution of the burden of proof are intrinsically linked to the specificity of the facts, the nature of the allegation made, and the Convention right at stake.

180. As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory (see Hugh Jordan, cited above, § 154). However, in more recent cases on the question of discrimination in which the applicants alleged a difference in the effect of a general measure or de facto situation (see Hoogendijk, cited above, and Zarb Adami, cited above, §§ 77-78), the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations. Thus, in Hoogendijk, the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule—although formulated in a neutral manner—in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.”

4 The relevance of interdisciplinary and contextual analysis

18In the previous sections, a variety of methodological devices have been expounded, which will contribute to overcoming the failures and problems posed by the comparator methodology. Such legal devices are yet to be firmly incorporated into legal reasoning, but they allow for a better, more accurate understanding of the requirements of equality, based on the recognition of difference. Moreover, undertaking a more ambitious analysis of equality requires embracing other perspectives and disciplines, beyond a strictly legal or constitutional analysis. Such perspectives should include sociology, anthropology and psychology, as well as gender, racial and ethnic studies, leading to a better grasp of the composition of circumstances, actions and activities, their causes, and the genuine components in the fabric of relationships, intentions and expectations, as well as inherited meanings. All these aspects constitute the context of discrimination, and it is that very context which in turn reveals the extent of discrimination itself (Goldberg 2011: 783). In order to fully understand context, courts should therefore go beyond comparing cases alone and broaden their view to include more subtle, yet more revealing aspects surrounding the specific cases. Thus, in this comprehensive enterprise, interdisciplinary analysis may prove to provide important benefits.

19In supporting interdisciplinary analysis, feminist theory has developed a solid number of conceptual instruments for explaining the position of women in society, including complex categories of analysis which reveal patriarchy, gender subordination, difference, private issues as public matters, intimate and family violence, and many other features. Añón (2020: § 7) correctly states that feminist theory has abundantly explained this complex social situation of women, which has very frequently been reduced to a short-sighted concept of unequal treatment, understood in a way that seems rather simplistic when compared to existing patterns of behaviour and their correspondent legal standards. As she explains, such standards are inadequate and distort demands for the protection of women’s important interests. This amounts to saying that a rich structure of entrenched gender relations has been translated into a single category, thus seeking to conform women’s demands to already existing standards of equality, and disregarding women’s specific context and positions. Discrimination so understood misses the point entirely. Whenever discrimination focuses on comparative analysis alone, disregarding the surrounding complex context, legal reasoning becomes inefficient in its protection of human rights.

20To sum up, and as stated by Añón in her paper, the comparator methodology must be put under examination, and new methodological approaches, such as stereotype analysis, have to be incorporated in order to fully understand structural inequalities. In addition to these, as I have expounded in this reply, other legal tools and procedures can be developed, such as intersectional analysis or consultation with experts, to provide information and advice on specific issues. Notwithstanding the advantages a clean or more aseptic legal analysis comparator methodology may offer, this methodology has been revealed to suffer important deficits, as it ignores the complexity of the cases under study, as well as their origin in structural social unbalances, consequently missing the exact dimensions of the facts and the relevant interests to be protected by law.