Legal sex/gender distinction is unconstitutional, Bulgarian Court rules
by Marin Guentchev and Hristo Guentchev
On July 27th, 2018, in a landmark decision, the Bulgarian Constitutional Court ruled that a legal sex/gender distinction is unconstitutional. This decision is likely to have far-reaching consequences for Bulgaria and the whole of the European Union (EU).
The background of this issue is as follows. During the last nine months Bulgaria was in enormous turmoil in response to the call for the ratification of the Istanbul Convention—a Council of Europe convention that opposes violence against women and domestic violence; it was opened for ratification on May 1th, 2011, in Istanbul, Turkey. The issue of ratifying it was brought before the Bulgarian government on January 3rd, 2018, and it has since been a divisive force both within Parliament and among the Bulgarian people. Proponents of the Convention (e.g. the European Commission, libera-left NGOs) claim that it aims to “harness the EU’s already existing legislative framework of action against violence and to provide a stable and sustainable foundation for activating Union resources for specific areas of the Convention”. However, socially conservative opponents argue that it introduces a currently unknown distinction between “sex” and “gender” in EU and Bulgarian law.
After several weeks of heated public debate, the majority of Bulgarians disapproved of the ratification of the Istanbul Convention. To clarify the issue and to subdue public excitement, 75 members of parliament submitted a request to the Constitutional Court of the Republic of Bulgaria asking to review the constitutionality of.the Convention.
On July 27th, 2018, in an 8-to-4 decision, the Court ruled that the Istanbul Convention violates the Bulgarian Constitution. All five women in the Court voted in favour of that decision. The only way to override a Bulgarian Constitutional Court decision is by changing the Constitution.
“The requirement of legal certainty and predictability” the decision states “precludes the existence of two parallel and mutually exclusive concepts of what sex/gender is. Thus, the ratification of the Convention would lead to the introduction of a concept contrary to constitutional law in the national legal order”.
Furthermore, the decision of the Bulgarian Constitutional Court states that the concept of gender and sex being two independent masculinity and femininity trait dimensions would be an obstacle when combating violence against women. The judges conclude that the definition of “gender as a social construct, blurs the lines between male and female, as biologically determined” and “if society loses the capacity to make a difference between male and female, the fight against violence against women remains only a formal, but incomplete commitment”.
During the last century, Bulgaria has twice rejected extremist ideology: first, Germany’s racist views, resulting in the rescue of some 50,000 Jews during WWII, and second, Soviet-imposed communism. Today, for the third time in a century, Bulgarian society has recognised and rejected political extremism.
Unquestionably the Court’s decision will impact the establishment of EU wide legislation regarding gender and gender identity. As EU laws on the provision of new civil rights and anti-discrimination measures must be voted unanimously, it will be far more difficult (currently impossible) for the EU to adopt legislation to establish the legal concept of gender and sex being two independent masculinity and femininity trait dimensions.
About the authors
Marin Guentchev received his M.D. and Ph.D. from the University of Vienna, Austria. Currently he is founder and owner of Trinity Medical Center in Sofia, Bulgaria and is Junior Professor (Privatdozent) for neurosurgery at the University of Heidelberg, Germany.
Hristo Guentchev received his architectural degree from the Technical University in Vienna, Austria. He is founder and owner of Prototyp Ltd an international facade engineering company. Prototyp’s portfolio includes engineering work on landmark projects like the extension of the British Museum (London), BMW Museum (Munich), Louvre (Abu Dhabi), and Museum of the Bible (Washington, D.C.).
Since 2018 they write a blog (http://www.gbros.org/) discussing Bulgarian and European politics. Their political articles have been published in The American Spectator, Epicenter.bg, Glasove.bg.
Legal reference is here:
DECISION No 13
Sofia, 27 July 2018
(prom., State Gazette, issue № 65 of 7 August 2018)
The Constitutional Court, composed of: Chair – Boris Velchev, Members: Tsanka Tsankova, Stefka Stoeva, Roumen Nenkov, Keti Markova, Georgi Angelov, Anastas Anastasov, Grozdan Iliev, Mariana Karagyozova-Finkova, Konstantin Penchev, Philip Dimitrov, Tanya Raykovska, with the participation of the recording secretary, Gergana Ivanova, examined in a closed sitting on 27 July 2018 Constitutional Case No 3/2018, reported by Justice Anastas Anastasov.
The proceedings are pursuant to Art. 149, para. 1 (4), first section, of the Constitution of the Republic of Bulgaria (The Constitution).
The case was constituted on 8.02.2018 upon the initiative of 75 Members of the 44th National Assembly. The matter has been referred to the Constitutional Court in a request to rule on the compliance with the Constitution of the international treaty signed by the Republic of Bulgaria on 21.04.2016 – Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (The Convention), drawn up on 11.05.2011 in Istanbul, prior to its ratification.
The Members of the National Assembly emphasize “the social and public significance of the Convention, the wide public interest and the high
degree of political engagement of society”, which have motivated them to appeal to the Constitutional Court. The movants state that both positive and negative opinions about the Convention have been received and continue to be received in the National Assembly. According to the Members of the National Assembly, the negative opinions state that through this international treaty, concepts incompatible with the Bulgarian public order and unknown in our legal system have been introduced, and the content which is put into the provisions of the Convention differs from the generally accepted and traditional one. According to the movants, in most of the expressed negative opinions, the major arguments for non-compliance with the Constitution are related to the provisions of Art. 3. c, Art. 12, § 1 and Art. 14, § 1 of the Convention, and the expressions used in them: “…socially constructed roles”, “stereotyped roles”, as well as the term “gender”, as objective elements of the content of the term “sex”…”, whether they are compatible with the Constitution, including with the provision of Art. 46, para. 1 of the Constitution in the context of defining “a third sex” and creating the possibility of same-sex marriages.
The movants also point out that the comparison between the terms and expressions used in the Convention and the content of the Constitutional provisions and the substantive assessment of the compliance of the purposes, content and nature of the Convention with the Constitution is of the competence of the Constitutional Court, in the context of whether and to what extent the fulfilment of the commitments arising from the Convention for the Republic of Bulgaria is in compliance with the Constitution of the country.
With determination of 20.03.2018, the Court has admitted the request for substantive examination, and has constituted interested institutions in the case; it has invited non-governmental organizations and distinguished specialists in science and practice, who have been given the opportunity to submit written positions and legal opinions.
From the constituted institutions, opinions have been presented by the President of the Republic of Bulgaria, the Minister of Foreign Affairs, the Minister of Justice, the Minister of Health, and the State Agency for Child Protection.
In his opinion, the President of the Republic of Bulgaria expresses the view that the Convention contains concepts and expressions with unclear meaning, which gives ground to different contradictory interpretations, creates prerequisites for imbuing these concepts and expressions with “additional” meaning, beyond their known and established content, but most of all – beyond the core values of the Bulgarian Constitution. According to the President, charging the concept of “sex” with the social characteristics used in the Convention is not consistent with the clear understanding, contained in the Constitution, of the equality between man and woman, of the identification of a person as a man or a woman (Art. 6, para. 2 of the Constitution), of the voluntary union (marriage or not) between a man and a woman, of the family which has been entrusted with the raising and upbringing of children, of the special protection by the state of the woman-mother (Art. 46 and Art. 47, para. 2 of the Constitution).
The Minister of Foreign Affairs believes that “the concepts, norms and regime of the Convention are in full compliance with the constitutional principles, norms and traditions”. The Minister gives an overview of the current Bulgarian legislation in force and of the existing international legal commitments, and concludes that the concepts “gender”, “socially constructed roles” and “stereotyped roles”, borrowed from sociology, are not new for the international legal doctrine, or for the domestic law of the Republic of Bulgaria. The Minister points out that, within the context of the Convention, the term “gender”, based on the two sexes, male and female, takes into account the existence of socially constructed roles, behaviors, activities and attributes that a given society considers to be appropriate for women and men. The Minister also states that the Explanatory Report to the Convention specifies that the term “gender” is not intended as a replacement of the concepts of “women” and “men”, and the Convention also uses the concept of biological sex, which shows that the concepts “gender” and “sex” have independent meanings. In relation to the commitments which shall arise for the Republic of Bulgaria from the ratification
of the Convention, after its entry into force, the statement maintains that they are totally related to the specification of the measures for prevention and combating violence against women and domestic violence in the context of establishing gender equality.
The opinion of the Minister of Justice adopts the position that the Convention fully complies with the Constitution and sets out primarily the obligation to prevent and combat violence against women in the wider framework of achieving equality between women and men.
In his opinion on the case, the Minister of Health does not take a specific position. On the one hand, the Minister believes that no problems arise about the understanding of the concept of “sex” or about the application of the provisions of Art. 3. c, Art. 12, § 1 and Art. 14, § 1 of the Convention, indicated by the movants, because a basic feature for defining the protection provided by the Convention is sex, but no other than the only sexes possible – female and male, following their biological determination as accepted by the Constitution, the Bulgarian legal order and the Bulgarian case law. On the other hand, according to the Minister, a problem would arise in the application of Art. 3. b, Art. 4, § 3, Art. 12, § 3, where there is a deviation from the principle of the two biological sexes – male and female. The Minister accepts that, because of the meaning put into these and other provisions of the Convention, and the lack of clarity concerning the categories used in them, there is reason to pose the question whether and to what extent the fulfillment of the commitments arising from the Convention for the Republic of Bulgaria would be compatible with some parts of the Constitution.
The position the State Agency for Child Protection is that the framework nature of the Convention should be taken into consideration in assessing its compliance with the Constitution, whereby it is incorrect for the purposes of that assessment to use only the Bulgarian translation which is not precise in a number of points, including the definitions of basic concepts. The State Agency for Child Protection takes the position that there is a need for ratification of the Convention and its compliance with the Constitution.
In response to the opportunity provided to them, opinions on the case
have also presented the following non-governmental organizations: “Bulgarian Lawyers for Human Rights” Foundation, “Association Animus” Foundation, “Alliance for Protection against Gender-based Violence” Association, “Bulgarian Fund for Women” Foundation, and the Institute of Modern Politics.
The “Bulgarian Lawyers for Human Rights” Foundation takes the view that the Convention complies with the provisions and the spirit of the Constitution, as well as to the legislation on protection from domestic violence currently in force in Bulgaria.
The “Association Animus” Foundation believes that the Convention complies with the Constitution and does not imply anything other than the meaning, in which “sex” is used in the Bulgarian Constitution, the Law on Equality between Women and Men or the Law on Protection against Discrimination.
The “Alliance for Protection against Gender-based Violence” Association holds the opinion that the provisions of the Convention comply with the Constitution, do not contain unknown in our legal system concepts, which are different from the generally accepted and traditional ones, and which are incompatible with the Bulgarian public order, and also that the fulfillment of the commitments arising for the Republic of Bulgaria from the Convention, is compatible with the Constitution.
The “Bulgarian Fund for Women” Foundation takes the firm position that the Convention complies with the Constitution and although it requires amendments of the Bulgarian legislation in a number of areas, it does not imply any amendments of the Constitution. The Foundation states that the concept used in Art. 3. c of the Convention has been translated incorrectly simply as “sex”, and in fact the definition refers to a term denoting the social, not the biological dimensions of sex and in no way affects the re-definition of biological sex, and which incorrect translation has led to misinterpretation in the translation also of other key terms such as “gender-based violence against women”, in Art. 3. d, “gender-based identity” in Art. 4, § 3, “non-stereotyped gender roles” in Art. 14, § 1 of the Convention.
The Institute of Modern Politics holds that the Convention does not comply with the Constitution, since Art. 3. c and Art. 4, § 3 of the Convention violate the principle of legal security, which is a constitutive element of the rule of law, as they contain concepts and expressions, whose content is not clear, precise and unambiguous, thus creating unpredictability in the legal consequences and the legal order; Art. 12 and 14 of the Convention do not comply with Art, 32, para. 1, Art. 47, para. 1 and 2 of the Constitution, or with the dignity of the person as a fundamental constitutional value, proclaimed in the Preamble of the Constitution; the philosophy of the Convention does not conform to the principle of equality and equal treatment of women and men, insofar as it focuses not on the actual unlawful social phenomenon – violence against the intimate partner and in the family – but is based on the idea that ” as a rule, women are victims and as a rule, men are abusers.”
Prof. Dr. Pencho Penev, Prof. Dr. Plamen Kirov and Prof. Dr. Daniel Valchev have also expressed written legal opinions.
Prof. Dr. Pencho Penev presents arguments for incompliance of the Convention with the legal system established by the Constitution of the Republic of Bulgaria. According to him, when it refers to “sex”, the Bulgarian Constitution means its biological characteristics – sex is biologically determined, and the human being is a man or a woman. According to Prof. Dr. Penev, the adoption of another essence, another characteristic of the concept of “sex” would lead to impermissible contradictions, as there will be two parallel and mutually incompatible entities of one and the same concept, one of which differs from the constitutionally established one. Prof. Dr. Penev also justifies non-compliance of Art. 14 of the Convention with Art. 47, para. 1 of the Constitution. He holds that the Convention adopts an educational approach which includes the state “at all levels of education” and also calls for active participation of other educational structures, of the non-governmental organizations and the media, which does not comply with Art. 47, para. 1 of the Constitution that entrusts upbringing to the parents, not to the state or the non-governmental sector.
Prof. Dr. Plamen Kirov holds the opinion that in some of its texts the
Convention does not comply with constitutional principles and norms of the Bulgarian supreme law, and comes into serious conflict with the Bulgarian constitutional identity. According to Prof. Dr. Kirov, Art. 3. c and Art. 4, § 3 of the Convention do not comply with the principle of the rule of law, as far as their eventual entry into force for the Republic of Bulgaria would cause legal uncertainty and clash with the Bulgarian constitutional identity, as they contain concepts (“gender”, “gender identity”) which are foreign to the Bulgarian constitutional and legal system, which do not have clear, precise and generally accepted legal content, and which would have dangerous consequences for our legal system. Prof. Dr. Kirov further states that Art. 12 and Art. 14 of the Convention “contrast” with the content of Art. 32, para. 1 and Art. 47, para. 1 and para. 2 of the Constitution, as they cause unacceptable interference in the personal life of citizens, whereby obliging the Bulgarian state to take measures for changes in the social and cultural models of behavior of the Bulgarian citizens with the purpose to eradicate “stereotyped roles for men and women”, without the latter being in any way connected with violent actions, discrimination behavior, or any other unlawful acts. At the same time, a gross interference by the state is envisaged, which violates the rights and responsibilities of parents, enshrined in the Constitution, in bringing up their children.
Prof. Dr. Daniel Valchev thinks that the provisions of Art. 3. c and Art. 4, § 3 of the Convention do not comply with the principle of the rule of law, proclaimed in the Preamble and Art. 4 of the Constitution. According to Prof. Dr. Valchev, ratification of the Convention would lead to the inclusion in the Bulgarian legal order of an act which contains concepts of unclear meaning, correlation and volume, which contradict concepts already established in the legislation and case law. The Professor states also that there is also granting of additional rights and additional protection to persons, who have been determined not by objective criteria, but on the basis of their statements about their own internal experiences. In view of which, he thinks that Art. 1, 2 and 3 of the Convention do not comply with the principle of equality, proclaimed in Art. 6 of the Constitution. Prof. Dr. Valchev also puts forward arguments for non-compliance of the provisions of Art. 12, § 1 and Art. 14, § 1 of the Convention with the provision of Art. 47, para. 2 of the Constitution.
The Constitutional Court considers it appropriate first to discuss some basic moments of the process of creating the Convention, and its essential characteristics as an international legal instrument for combating violence against women and domestic violence, which are important for further deliberation in order to rule on the substance of the request.
Pursuant to the Convention, the authentic text of the treaty is in the English and French languages, both texts being equally authentic. The judgement of the Constitutional Court in the proceedings on Art. 149, para. 1 (4), first section, of the Constitution, about the compliance of the signed international treaty with the Constitution, prior to its ratification, is to be made on the basis of the translation of the text of the Convention, which has been provided for the case by the Council of Ministers of the Republic of Bulgaria. For the introduction of a bill for ratification in the National Assembly, the parliamentary debates will be held on the text in the Bulgarian language to be promulgated in the State Gazette after eventual ratification of the Convention and on the basis of it, the obligations arising from the international treaty for the Republic of Bulgaria will be implemented by the state (determination of 23.10.1997 on c. c. № 15/1997).
Counteracting violence against women is an issue of fundamental importance for Europe and is part of the fundamental European values. Since the nineties, the Council of Europe, and more precisely its Steering Committee for Equality between Women and Men – CDEG has made consistent efforts in support of the protection of women from violence. The first comprehensive strategy for prevention of violence against women was the adopted in 2002 -Recommendation “Rec (2002)5” of the Committee of Ministers to the member States on protection of women from violence. The Parliamentary Assembly of the Council of Europe has taken a firm political stance against all forms of violence against women, having adopted a number of resolutions and recommendations concerning different forms of violence against women. In 2008, the Committee of Ministers of the Council of Europe established the Ad Hoc Committee on Preventing and Combating Violence Against Women and Domestic Violence – CAHVIO, with a mandate for developing legally binding standards to cover these two areas – violence against women and domestic violence. In 2011, the efforts of the Council of Europe ended with the development of a draft convention, prepared by CAHVIO, with the aim to guarantee protection of women from all
forms of violence and to prevent, prosecute and eliminate violence against women and domestic violence (Art. 1 § 1. a of the Convention).
The Convention of the Council of Europe on preventing and combating violence against women and domestic violence is the first comprehensive international treaty which aims to create standards, on the basis of which the States shall harmonize their domestic legislation on this matter. The Convention explicitly defines violence against women as violation of human rights and a form of discrimination against women. It includes specific provisions which aim to encourage equality between sexes and the status of women in society. These legally binding commitments (Art. 4, Art. 6, Art. 12 and Art. 14) are expected to give a new impetus to achieving equality between women and men at the national level, and to strengthen a common goal of non-discrimination against women. The Convention expands the scope of the attributes for non-admittance of discrimination and takes an approach of gender-based understanding of violence against women and domestic violence.
Alongside the policy followed by the Council of Europe of protecting women from gender-based violence and for non-discrimination against women, the Council, in a number of acts, calls upon member States of the Council of Europe to explicitly prohibit discrimination based on “gender identity” in their domestic anti-discrimination legislation, as well as to include the problem with human rights of transgender people in the scope of action of the national institutions for human rights, with explicit reference to the attribute of “gender identity” as a form of discrimination against women.
In 2010, the Committee of Ministers of member States of the Council of Europe adopted Recommendation CM/Rec(2010)5 on measures for combating discrimination based on sex-orientation or gender identity. According to the Recommendation, member States of the Council of Europe should take appropriate measures to guarantee the full legal recognition of a person’s gender reassignment in all areas of life, in particular by making possible the change of name and gender in official documents in a quick, transparent and accessible way. Member States should take all necessary measures to ensure that, once gender reassignment has been completed and legally recognized, the right of transgender persons to marry a person of the sex opposite to their reassigned sex is effectively
guaranteed. The measures address a number of key issues about the rights of lesbian, gay, bisexual and transgender people (LGBT).
In 2014, the Council of Europe set up a structure devoted to issues of sexual orientation and gender identity. In addition, in 2014 the Secretariat of the Council of Europe also established a working group: “Sexual orientation and gender identity”. The structure assists member States in the implementation of the LGBT recommendations of the Committee of Ministers.
In April, 2015, the Parliamentary Assembly of the Council of Europe adopted a decision directed against Discrimination of Transgender People in Europe (Resolution 2048 (2015). The Resolution and the report thereto examine different forms of discrimination, including difficulties in having access to work, housing and health services. The Resolution also notes that the Assembly is concerned about violations of fundamental rights, especially the right to private life and physical integrity, which transgender people face when entering a lawsuit for legal recognition of their gender and the inadmissibility of the introduced requirements such as sterility, divorce, mental health diagnosis, surgical interventions and other medical treatments. Member States of the Council of Europe are called upon to explicitly prohibit discrimination based on “gender identity” in their domestic anti-discriminatory legislation, and to include the problem with human rights of “transgender” persons in the scope of activity of the national institutions for human rights with explicit reference to gender identity, as well as to develop quick, transparent and accessible procedures, based on self-determination, for change of name and gender in the documents of transsexual people, to make these procedures accessible for all people in need of this, regardless of age, medical condition, financial situation, or court history, to consider including a third option for a documented gender for those who need it.
In 2015, the Council of Europe published a Guide on the legal aspect of sex change and the protection of human rights of “transgender” people, according to which by “gender identity” is to be understood: “each person’s deeply felt internal and individual experience of gender, which may or may not correspond with the sex assigned at birth, including a personal sense of one’s body and other expressions of gender, including dress, speech and mannerisms”.
The above-stated clearly shows the relation between the policy of the Council of Europe for prevention and combating violence against women as a form of discrimination against women based on gender and the protection of some rights of “transgender” people.
The Constitutional Court of the Republic of Bulgaria considered the arguments in the request of the Members of the National Assembly, in the expressed opinions of the institutions and non-governmental organizations, in the written legal opinions presented and the written evidence admitted on the case. In order to rule on the compliance of the Convention with the Constitution, the Court, after discussing the purposes of the Convention, the general and special principles, definitions and policies adopted therein and the Convention provisions, in their relation and reference, found that:
The Council of Europe Convention on preventing and combating violence against women and domestic violence is the first treaty in Europe, which creates a comprehensive legal framework for protection of women and girls from all forms of violence and for prevention, prosecution and elimination of violence against them, including domestic violence. The Convention sets the elimination of violence against women within the framework of the wider context of achieving real equality between women and men, thus recognizing violence against women as a form of discrimination. It expresses the will of the contracting States to apply the general principles for protection of human rights also to women and girls, victims of violence, as well as to the victims of domestic violence. At the basis of this will stands the shared understanding of the member States of the Council of Europe of the ambition to preserve and implement the common European principles and ideals.
The Preamble to the Convention declares the will of the member States of the Council of Europe and of the other signatories to create a “Europe free of violence against women and domestic violence”. For the purpose, the Convention affirms the link between achieving gender equality and eliminating violence against women. On the basis of this prerequisite, it recognizes the “structural nature” of violence against women, and that it is a manifestation of the historic inequality in the relationship between men and women. The Convention consistently maintains that violence against women cannot be abolished without
investing in the equality of the sexes, and only the real (de jure and de facto) equality between the sexes and the change in attitudes may really prevent such violence.
Art. 1 of the Convention declares its purposes. Paragraph 1 states as a specific purpose of the Convention the protection of women against all forms of violence, as well as prevention, legal prosecution and elimination of violence against women and domestic violence. In compliance with the recognition contained in the Preamble that there is a link between the eradication of violence against women and achieving de jure and de facto equality between the sexes, it is pointed out that the Convention will contribute to the elimination of all forms of discrimination against women and will encourage the real equality between women and men. The indicated provision reflects the need for a thorough approach in the protection and assistance to all victims of violence against women and domestic violence.
The so declared purposes of the Convention fully comply with the basic constitutional principles of the Republic of Bulgaria. The Preamble of the Constitution pledges the loyalty of the Bulgarian people to the universal human values, among which explicitly indicated are humanism, equality, justice and tolerance. The rights of the individual, his/her dignity and security have been enshrined as a supreme constitutional principle. Equality is among the basic principles of the current Bulgarian Constitution. An explicit constitutional prohibition has been introduced against any discrimination based on “sex” (Art. 6. para. 2 of the Constitution). Except as a principle, equality in dignity and rights is also proclaimed as an inherent human right in the Constitution. In a number of constitutional provisions, it has been concretized and embedded in the content of individual fundamental rights and freedoms. A proof of the aspirations of the Republic of Bulgaria to protect basic human rights and, in particular, to protect all victims of violence, including women and children, as well as to eliminate all forms of discrimination and achieve equality, is the legislation in force: Penal Code (prom., SG 26 of 02.04.1968; last amend., SG 55 of 03.07.2018), Law on Protection against Domestic Violence Act (prom., SG 27 of 29.03.2005; last suppl., SG 50 of 03.07.2015), Law on Child Protection (prom., SG 48 of 13.06.2000; last amend. – SG 17 of 23.02.2018), Law on the Equality of Women and Men (SG 33 of 26.04.2016), Law on Protection from Discrimination) (prom.,
SG 86 of 30.09.2003; last amend., SG 7 of 19.01.2018).
The Constitutional Court finds that, despite its indisputable positive aspects, the Convention is internally contradictory, and this contradiction creates the effect of a double layer of meaning in it. Thus, the content of part of its provisions goes beyond the declared purposes of the Convention and its name.
In Art. 1, § 1. a and b of the Convention, in order to determine the object of protection from all forms of violence and discrimination, the term “women” is used, which undoubtedly is based on the biological understanding of sexes. At the same time, in Art. 3. c among the legal definitions of the Convention (in the English and in the French languages) appears the concept “gender”/”genre”, translated in the Bulgarian language as “sex” with the following content: “socially constructed roles, behaviors, activities and attributes that a given society considers appropriate for women and men”. Only in the provision of Art. 4, § 3 of the Convention, the term “gender”/”genre” has been translated into Bulgarian as “social sex”. In the Convention, the terms “sex”/sexe’ (“пол” – BG) and “gender”/genre” (“пол” – BG, “социален пол” – BG) are present next to each other, where social sex is among the attributes for non-admittance of discrimination under Art. 4, § 3 along with the biologically determined sex attribute – “sex, gender …” / “sexe, genre …”. In this way, sex as a biological category (“sex”), but also sex as a social construct (“gender”), determined by the subjective perceptions and ideas of the individual and of the society about the role of men and women, have been made autonomous and equivalent categories of the Convention with their own legal existence. The term “gender”/genre” (“sex”) is present in the Convention as an independent category other than sex as a biological assignment. The Convention separates the biological and social dimension of sex and goes beyond the framework of the view of the sexual binarity of the human species. With the meaning indicated in Art. 3. c, “gender”/genre” (“sex”) turns into an essential, underlying concept which is a defining concept for the meaning also of the other expressions used in the Convention, based on this concept. Evidence of the self-standing role of the concept “gender”/”genre” (“sex”) are also the numerous provisions of the Convention which contain expressions based on this concept – Art. 2 § 2, Art. 4, § 3, Art. 6, Art. 14, Art. 18, Art. 49, § 2, Art. 60, § 2 and § 3 of the Convention.
“Gender” is used in the expressions: “gender equality” (Preamble – “equality of the sexes” (“равнопоставеност на половете” – BG)), “gender-based violence” (Preamble, Art. 2, 3, 4, 14 – “violence, based on sex” (“насилие, основано на пола” – BG)), “gender identity” (Art. 4, § 3 – “identity based on sex” (“идентичност, основана на пола”)), “gender-sensitive policies” (Art. 6 – “policies taking into account sex specificities” (“политики, отчитащи особеностите на пола” – BG)), “gender perspective” (Art. 6 – “perspective based on sex” ( “перспектива, основана на пола” – BG)), “non-stereotyped gender roles” (Art. 14 – “non-stereotypes roles of sex” ( ”нестереотипни роли на пола” – BG)), “gendered understanding of violence” (Art. 18, Art. 49, § 2 – “understanding of violence, based on sex” (“основано на пола разбиране на насилието” – BG)), “gender-based asylum claims” (Art. 60 – “requests for asylum, based on sex” (“молби за убежище, основани на пола” – BG)), “gender-sensitive interpretation” (Art. 60, § 2 – “interpretation taking into account the specificities of sex” (“тълкуване, отчитащо особеностите на пола” – BG)), “gender-sensitive reception procedures” (Art. 60, § 3 – “procedures for asylum, taking into account the specificities of sex” (“процедури за убежище, отчитащи особеностите на пола” – BG)). These expressions, depending on the interpretation, may lead to different and contradictory understanding of the philosophy of the Convention. It is the first international treaty signed by the Republic of Bulgaria, in which such a definition of the concept “sex” is given (Art. 3. c of the Convention).
The provision of Art. 4, § 3 of the Convention requires the Parties thereto to implement the provisions of the Convention, in particular, the measures for protection of the rights of victims “… without discrimination on any ground such as sex, gender, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth, sexual orientation, gender identity, age, state of health, disability, marital status, migrant or refugee status, or other status.” According to § 53 of the Explanatory Report to the Convention, accompanying its creation, and in the light of the growing body of case law of the European Court of Human Rights under Art. 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, the list under Art. 4, § 3 has been substantially expanded, as it must provide protection from discrimination on the grounds of multiple attributes to a number of vulnerable groups. In this category – according to the Report – are also
people who do not correspond to what society has defined as belonging to the categories of “men” and “women”.
Although it does not specifically address the rights of “transgender” people themselves, the Convention is also the first international treaty, signed by the Republic of Bulgaria, which explicitly includes the attribute “gender identity”, in Art. 4, § 3 as a ground for non-discrimination. It must be noted that the expression “gender identity”/”l’identité de genre” does not meant “sex” as a biological category, but “gender” in the meaning implied in the given definition of the concept in Art. 3. c of the Convention. The Convention does not give a definition of “gender identity”/”l’identité de genre” (“идентичност, основана на пола”-BG). The Explanatory Report to the Convention (§53) defines “gender identity” as follows: “Certain groups of individuals may also experience discrimination on the basis of their gender identity, which in simple terms means that the gender they identify with is not in conformity with the sex assigned to them at birth. This includes categories of individuals such as transgender or transsexual persons, crossdressers, transvestites and other groups of persons that do not correspond to what society has established as belonging to “male” or “female” categories.”
Given the lack of definition of the concept “gender identity”/”l’identité de genre” (“идентичност, основана на пола” – BG) in the Convention, its content is to be understood not only through the Explanatory Report, but also in the light of the policy of the Council of Europe for protection of some rights of “transgender” people. The acts of the Council of Europe stated above, directed against discrimination and violence based on sexual orientation and gender identity, undoubtedly serve to explain the meaning implied in the concepts of “gender” (“sex” – “пол“ BG) and “gender identity” (“идентичност, основана на пола” – BG) in the context of the approach of the Council of Europe to encourage the understanding that the biological and social dimensions of sex are not inextricably linked and exist independently of each other, and the ability of people for gender self-determination, and also in terms of guaranteed by the state full legal recognition of the change of sex.
The analysis of the terms “gender”/”genre”, translated in the Bulgarian language once as “sex” and also as “social sex”, and “gender identity”/”l’identité
de genre”, translated into Bulgarian as “identity, based on sex”, shows that the concepts are related and are to be understood one through the other. The concept “gender”/”genre” with the meaning of “socially constructed roles, behaviors, activities and attributes that a given society considers appropriate for women and men” expresses certain social and cultural concepts of men and women, developed in a certain society at a certain moment. These concepts are subject to development to such an extent that newer concepts may exclude older ones, such as that sex (“полът” – BG) is biologically determined. From this point of view, a biological man may have the “gender”/”genre” of a woman and vice versa. This leads to the possibility for the individual to choose, upon his/her own will, a different “gender identity” which may not coincide with the biological one. The so presented understanding expresses aspects of “gender-ideology” – a collection of ideas, convictions and beliefs that biologically determined sex characteristics are irrelevant and only gender self-identification is relevant.
The lack of uniform understanding of the concept of “gender”/”genre” is also illustrated by the active social and political discussion on the issue “for” and “against” gender ideology, which has continued for more than two decades in dozens of countries.
As stated above, the Convention uses two concepts for sex – “sex” and “gender”. When introducing the expression “gender identity”, it stems from the idea that the social dimension of gender is independent of the biological one. Moving away from the concept of “sex” as a biological attribute – man/woman, distances the Convention from the declared in it purposes of protection of women from all forms of violence. The internal contradiction in the Convention is obvious when comparing the purposes declared in Art. 1 of the Convention and its name with the definition of “gender” given in the Convention. In fact, the very definition of the term “gender” would not be needed, if the declared purpose of the international treaty in reality complied with its name “…on preventing and combating violence against women…”. This two-layered nature of the concept apparatus, of the meaning assigned to the concepts used in it, actually does not lead to achieving equality between the sexes, but blurs the differences between them, by which the principle of equality loses its meaning.
The legal equality between sexes has been proclaimed at Constitutional
level in Art. 6, para. 2 of the Constitution. It does not mean equal treatment of both sexes, but requires consideration of the biological specificities and differences between them. Sex is among the explicitly established attributes in Art. 6, para. 2 of the Constitution, on the grounds of which no privileges or restrictions of rights are allowed. (Decision No of 27.01.2005, on c.c. No 8/2004). The Constitutional text treats biological sex as a concept with clear legal content. This is confirmed by the discussion of the provision as part of the draft Constitution “…for equality between man and woman” (Protocols from the meetings of the Committee on producing a draft Constitution of Bulgaria of 13.02.1991 and 10.06.1991), and also by the case law of the Constitutional Court on the interpretation of Art. 6, para. 2, where the criterion of “sex” is excluded from the group of attributes that are acquired or changed in the process of social realization of the citizens in society (Decision No 14 of 10.11.1992 on c. c. N 14/92).\
The Constitution and the whole Bulgarian legislation have been built on the understanding of the binary existence of the human species. In fact, the Constitution unambiguously views the social dimension of sex in interaction with the biologically determined one – Art. 47, para. 2 of the Constitution. In the aforementioned Constitutional provision, the biological sex “woman” is related to the social role – “mother”, to “giving birth”, to “obstetric care “. In short, the concept of “sex” is used by the Constitutional legislator as a unity of the biologically determined and socially constructed. The social dimension in the Constitution does not create a social sex, independent of the biological one, as provided for in the Convention.
At the international level, the understanding of gender as a unity of biological and social dimension is enshrined in the Rome Statute of the International Criminal Court (promulgated, SG No 68 of 16.07.2002). According to the provision of Art. 7, para. 3 of the Rome Statute: “For the purpose of this Statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term ‘gender’ does not indicate any meaning different from the above.”
Traditionally, human society is built on sexual binarity, i.e. the existence of two opposite sexes, each of which is assigned with specific biological
and social functions and responsibilities. Biological sex is determined by birth and is at the basis of civic sex. The importance of civic sex in the legal regulation of social relations (cohabitation, parenthood) requires provision of clarity, indisputability, stability and security.
The constitutional definition of marriage, as it has always been present in the Bulgarian legal tradition, is contained in the provision of Art. 46, para. 1, which defines it as “… a free union between a man and a woman.” The constitutional regulation of marriage has been built on the understanding of the existence of two biologically determined sexes – male and female. Defining marriage as a free union between a man and a woman, the Constitution raises the different biological sex as an imperative to those who are joined in marriage. The understanding of marriage as a relationship between a man and a woman is deeply rooted in Bulgarian legal consciousness and in this sense is at the basis of the constitutional regulation
Contrary to this constitutional understanding of sex as a biological category, the concept of “gender”/ “genre”, as a social construct, is present in the Convention separately and alongside the term “sex”/ “sexe”. As it has been pointed out, that fact distances the scope of application of the Convention from the stated purposes of protecting women, and opens up space for its contradictory application, which is contrary to the principle of the rule of law in a formal sense (Art. 4, para. 1 of the Constitution).
The Convention paves the way for the incorporation of the concepts of “gender” and “gender identity”, with the definition given in Art. 3. c, into the Bulgarian legal system. The requirements of Art. 4, para. 3 of the Convention would compel the Republic of Bulgaria to establish procedures ensuring the legal recognition of a gender other than the biological one, contrary to the Constitution.
The principle of the rule of law is present in the case law of the Constitutional Court with known and well-established content, combining a formal and material aspect. Today, in the European legal area, the widely shared understanding of the rule of law includes both the principle of legal security – the formal element, and the principle of material justice – the material element
(Decision No 1 of 27.01 2005 on c. c. N 8/2004).
The rule of law in the formal sense (the state of legal security) requires that the content of legal concepts is clear and unambiguous. The requirement for legal security and predictability precludes the existence of two parallel and mutually exclusive concepts of “sex”. The ratification of the Convention would lead to the introduction in the national legal order of a concept contradicting the constitutionally established one.
The principle of the rule of law is the foundation of the established Constitutional order. The provision under Art. 149, para. 1 (4), first section, of the Constitution guarantees the introduction in the national legal system of the values of the international community in preserving the core values established by the Constitution.
In the Convention, by defining “gender” as a social construct, the boundaries of both sexes – male and female are actually relativized as biologically determined. However, if society loses the ability to distinguish between a woman and a man, the fight with violence against women will remain only a formal but unfulfilled commitment.
The Constitutional Court holds that the Convention, due to the provisions of Art. 3. c and Art. 4, § 3, which are underlying for the meaning of the international treaty in its entirety, is not compatible with the Constitution. It is precisely in relation to these provisions that the Convention does not allow reservations. Pursuant to Art. 78, § 1 of the international treaty: “No reservation may be made in respect of any provision of this Convention, with the exceptions provided for in paragraphs 2 and 3.” The Constitutional Court stresses that once ratified, promulgated and come into force with respect to the Republic of Bulgaria, in accordance with Art. 5, para. 4 of the Constitution, it shall be incorporated into domestic law and shall be applied with priority over the national legislation it contradicts (Decision No. 7 of 2.07.1992, under c.c. No. 6/1992).
In view of the above stated reasons and on the basis of Art. 149, para. 1 (4), first section, of the Constitution, the Court
RULED:
The Council of Europe Convention on preventing and combating violence against women and domestic violence, drawn up on 11.05.2011 in Istanbul, signed by the Republic of Bulgaria on 21.04.2016, does not comply with the Constitution of the Republic of Bulgaria.
The decision was taken with eight votes.
Justices Roumen Nenkov, Georgi Angelov, Konstantin Penchev and Philip Dimitrov have signed the decision with dissenting opinion.
Chair: Boris Velchev