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WELMA's mailservice no. 3 - 2014- Special Edition

Dear newsletter reader,

WELMA proudly launches the first special edition of its newsletter. Special editions will reflect WELMA's research group structure and will be sent out on a regular basis. New features will be included as well as comments from WELMA's research staff.

This first edition was prepared by the Social Rights' Group and focuses on its members' research themes which cover areas such as discrimination, equality, relations, children’s rights and social rights. For a more comprehensive description of these themes, please see WELMA’s homepage. The group consists of professor Kirsten Ketscher, associate professor Stine Jørgensen, PhD student Freya Semanda, PhD student Marta Carneiro and PhD student Martine Kiel.

We hope you enjoy this special edition and find it informative and inspiring.

Kind regards,

Prof. dr. jur. Mette Hartlev, Head of Centre

In this issue

1. Research trends

Feminist International Judgments Project

2. Legislation

Simple and sexual violence committed against a spouse, child or next of kin as grounds for divorce

Legal gender change on the way to transgender people in Denmark

3. Case Law

Bella in the sky with stereotypes

Court of Justice of the European Union on surrogacy and maternity leave

Swedish tax authorities could not seize the family home

Biao v. Denmark (Appl. No. 38590/10) 28 year rule was not discriminatory

4. Reports

Gender equality in the workforce: reconciling work, private and family life in Europe

Economically poor children in Denmark

5. News, important dates, events

Welma PhD course

2014 AALS Workshop on Transnational Perspectives on Equality Law

6. Welma and society: beyond research and law

50 Acts by Wendy Houstoun

1. Research trends

Feminist International Judgments Project

By PhD-student Freya Semanda

WELMA's Social Rights' Group is participating in the International Feminist Judgments Project: Women's Voices in International Law. The project is a shadow judgment project, where judgments delivered by international courts will be rewritten from a feminist perspective. Shadow judgment projects are increasingly gaining ground in research and teaching contexts.

Loveday Hodson and Troy Lavers describe the purpose of the Feminist International Judgments Project as follows: “The (re)writing of judgments will demonstrate in accessible and meaningful ways possible alternatives to the structural inequalities of traditional international law.”

Read about Feminist International judgments project

Read about other shadow judgment projects:
Women’s Court of Canada
Feminist judgments Project (UK)
Australian Feminist judgments Project
The Wild Law Judgments Project

2. Legislation

Simple and sexual violence committed against a spouse, child or next of kin as grounds for divorce

By PhD-student Freya Semanda

The Danish Parliament has passed an amendment to the marriage and marriage dissolution act. Pursuant to § 34, paragraph 1, not only serious violence but now also simple assault and sexual assault will entitle a spouse to obtain immediate divorce against the will of the other spouse without a condition of prior separation. In addition, the expanded provision now includes offences committed against the next of kin (nærmeste pårørende) of the spouse or the children, with whom the spouse or the spouses' children have a close emotional connection, as well as against other children.

When asked to explain the meaning of the term next of kin, the Danish Minister for Children, Equality, Integration and Social Affairs stated that this is an "inclusive" concept: further to siblings, children, grandchildren, parents, grandparents and great-grandparents it also includes aunts, uncles, cousins, step-siblings, step-parents and former social parents. Moreover, the Minister emphasised that also other persons can be covered by the concept of next of kin, since the determining factor in the assessment is the actual emotional connection between the parties.

The new personal scope of § 34, paragraph 1, can thus be seen as an example of an inclusive approach to personal relations, so far as the provision puts weight on the actual relationship that the individual values, regardless of whether or not it is formally defined by marriage or traditional conceptions of kinship. Along the same lines, compare Kirsten Ketscher’s article Relationsret – En ny retsvidenskabelig optik? Fra ægteskabs- og familieret mod en inkluderende relationsret (Retfærd 2012) and Stine Jørgensen’s article Adoption som en retlig relation (Social kritik. Tidsskrift for social analyse & debat, nr. 137- februar 2014.)

Read the Danish Marriage and Marriage Dissolution act here (Danish)

Legal gender change on the way for transgender people in Denmark

By project assistant Tine Pedersen and Phd-student Freya Semanda

The Danish Government has amended the Danish act on the civil registration system, the Danish act on public health and the Danish act on assisted reproduction with the aim of implementing a so-called declaration model for legal gender change without prior requirements of castration or other forms of sex-correcting treatments. this will be in force as from the 1st of September 2014.

Under Danish law currently in force, legal gender change can only be obtained by way of a physical sex change in the form of castration. A Swedish court has previously held that such a requirement of castration amounts to a violation of article 8 in conjunction with art. 14 of the European Convention on Human Rights (Kammerrätten, Mål nr. 1968-12 from 2012).

According to the amended acts, a legal change of gender will now only require a declaration of the applicant’s experience of belonging to the opposite gender. As a consequence, the personal scope of § 61, paragraph 1, of the Danish act on public health now refers to "pregnant person" instead of a "pregnant woman". Also, it will be possible for a legal man, who has kept the uterus, to be assisted with donor sperm treatment.

When asked to comment on the impact of the changes to legal parentage as regulated in the Danish children’s act, the Danish Minister for Children, Equality, Integration and Social affairs replied that the definition of gender therein will continue to be linked to the person’s means of reproduction, and a legal man who gives birth to a child will therefore be legally recognised as the mother of the child.

The amendments illustrate how the legal architecture of parent-child relationships is undergoing major changes in Denmark, and it is interesting from a relationship perspective that conceptions of motherhood, fatherhood and parenthood seem to be evolving. In the Swedish case mentioned above, it was argued that the castration requirement was justified due to the possible confusion it would cause if the transgender person would have children. This was rightfully dismissed by the Swedish Court, and, as noted by the legal gender change workgroup under the Danish Ministry of Justice, many Danish children are in fact already living outside the traditional family.

Read the amendments to the Danish act on public health and the Danish act on assisted reproduction (Danish).
Read the amendments to the Danish act on the civil registration system

The Ministry of Justice's report (Danish)
.

3. Case Law

Bella in the sky with stereotypes

By prof. dr. jur. Kirsten Ketscher

Hotel Bella Sky in Copenhagen was in April 2014 convicted by the Danish Eastern High Court for sex discrimination for offering special rooms for women in a section of the hotel where men were not allowed. This was direct discrimination contrary to the Danish act on equality between men and women based on EU-directive 2004/113 on equal treatment in the access to and supply of goods and services.

This case illustrates how a big hotel stereotypes women and men for business purposes. The director of the hotel got the idea of a special section from a woman at a dinner party. A survey was carried out where 19 female guests were asked about their demands for a female hotel room. The answers were: good hygiene, quality face products, a big mirror and a powerful hair dryer. Some women also responded positively to the possibility of staying in a section where men were not allowed for security reasons. A similar survey was not done with male guests

Two female architects were asked to decorate 20 rooms (out of 812 rooms) with a “female touch”. This special touch was a.o.: an iron and an ironing board, a big towel, a bed with pink checked bedspread instead of the standard black checks. Only female guests and hotel personnel were allowed into this locked section. Several women were said to have spoken very positively about having slept in a bed where they knew no man had ever been!

The hotel tried to justify this direct discrimination with the feeling of insecurity that female business guests have when they have to stay in a hotel close to men. It was however not documented that business women were especially exposed to security problems or sexual harassment at hotels. On the contrary, it was documented that women are mostly exposed to violence in their own home while men are more exposed when they travel. The hotel thought nonetheless that it was important to service the (few) women who had this feeling of insecurity with a total exclusion of men from this special section.

All high court judges stated that the hotel did not have a legitimate aim for this discrimination. It is not legitimate to discriminate on the basis of a stereotyped idea of men as dangerous to women. Two judges (Ejler Bruun and Karen Hald) convicted Bella Sky for illegal discrimination. One judge (Henrik Bitsch) acquitted referring to the fact that the hotel had 812 rooms of which only 20 were for women exclusively. He found that the discrimination was too insignificant to be a violation.

This dissenting must be regarded as legally questionable. There is no support either in the Danish provision or in the Directive to make such a proportionality assessment when there is no legitimate aim for the discrimination.

A parallel example: Bella sky makes a survey to find out whether there is any interest among the guests for a special section where Muslims are not allowed to service people who feel threatened by Muslims. This idea is well received and the section established. There are still 792 rooms available for Muslims. The guests in the Muslim free section sleep well in a bed where they know that no Muslim has ever slept. Is this also an insignificant discrimination? The legal protection is the same as for sex discrimination. In both cases there is unacceptable stereotyping amounting to a serious infringement. One cannot ignore this by focusing on the 812 rooms.

This case also had a less visible business agenda. Bella Sky wished to be present in a market for male free hotel sections for (Muslim) women who otherwise are not allowed to travel to Denmark It is however not a legitimate aim for Danish legislation to facilitate such conservative and sex discriminating Muslim interpretations.

The Bella Sky case is not an insignificant silly case where equality has set aside common sense as advocated in the press. It demonstrates the sad fact that unacceptable sex discrimination with belonging stereotypes is still very much at work. Men are pictured as criminals and women as the perpetual victims. To allow such business policies is a serious threat against effective legal protection. The outcome of the case has irritated politicians who wish to weaken the legal protection for sex discrimination. It is interesting that their anger is targeted at the discriminated person and not at the discriminating international hotel.

Read the Danish case here (Danish)

Court of Justice of the European Union on surrogacy and maternity leave

By PhD-student Marta Carneiro

The Court of Justice of the European Union has recently issued two decisions denying that EU law provides a right to paid leave equivalent to maternity or adoption leave to a commissioning mother of a baby born through surrogacy and that a refusal thereof by the national authorities is discrimination protected under EU law.

Dealing with this much unregulated issue with still unexplored ethical, social and legal intricacies, the Court took a, to say the least, cautious approach. It narrowly and formally interpreted the Pregnant Workers Directive indissociably linking a right to maternity leave to the carrying out of a pregnancy and childbirth, neglecting that the leave also protects the development of the relationship between mother and child, as emphasised in previous case-law, as well as its importance with respect to the child’s rights. Strangely, in one case, not even legal recognition of parenthood at national level seemed to carry any consequences at this level.

Moreover, the underlying judicial reasoning denoted a misuse and overuse of comparisons to establish discrimination, thereby failing to recognise the reasons for the refusal as affecting women exclusively. It further strikingly overlooked the fact that women are still taking on most of childcare responsibilities. Finally, these decisions can be read as condoning a devalued meaning of fatherhood and justify a call for EU action to establish paternal and adoption leave rights.

Read the cases:
C 167/12, C.D. v S.T.

C 363/12, Z. v A Government Department and The Board of management of a community school

Swedish tax authorities could not seize the family home

By PhD-student Freya Semanda

The Supreme Court of Sweden has delivered an interesting decision concerning the right to one’s home.

A Swedish couple lived with their two children aged 8 and 2 in their family home. Due to the father's tax debt the Swedish tax authorities decided to seize the property where they lived. The couple complained about the decision, explaining the difficulties of finding a new home for the family. Referring to Swedish law as well as to article 8 of the European Convention on Human Rights and article 3(1) of the UN Convention on the Rights of the Child, the Swedish Supreme Court stated that the tax authorities should as far as possible seize any property other than the debtor's home. Since the seizure would cause considerable inconvenience to the family and could only be expected to generate 36.000 SEK, the Supreme Court revoked the tax authority's decision.

In its reasoning the Supreme Court of Sweden recognised the individual’s right to his/her home, especially emphasising children’s right to their homes under the European Convention on Human Rights and the UN Convention on the Rights of the Child. The case could probably also have been raised as a question of a disproportionate interference with property under article 1 of the European Convention on Human Rights, Additional Protocol 1.

Read the Swedish verdict here (Swedish)

Biao v. Denmark (Appl. No. 38590/10) 28 year rule was not discriminatory

By project assistant Anders Trebbien Daugaard and PhD-student Freya Semanda

The European Court of Human Rights has recently delivered a ruling concerning the Danish 28 year rule. The case involved a Danish citizen of Togolese origin who married a Ghanaian citizen in Ghana and later applied for family reunification in Denmark. The couple was denied family reunification on the grounds that their aggregate ties to Denmark were not stronger than their aggregate ties to Ghana. The Danish citizen of Togolese origin could not be exempted from the attachment requirement since he did not meet the requirement of having held Danish citizenship for 28 years or having lawfully resided in Denmark for 28 years. The couple took the case to court claiming that the refusal of family reunification was contrary to their right to family life under article 8 of the European Convention on Human Rights alone and in conjunction with article 14 of the same convention. Since the couple could not reside in Denmark they moved to Malmö in Sweden, where they had a son.

Both the Danish Supreme Court and the European Court of Human Rights found unanimously that the denial of family reunification did not amount to a breach of the right to family life. On the issue of discrimination, the majority in the Danish Supreme Court and the European Court of Human Rights found that the decision did not amount to discrimination, even though it was noted by the latter that the Danish 28 year rule was ”excessively strict”. The minority both courts found on the other hand that the couple had suffered indirect discrimination: The Danish legislation resulted in treating non-ethnic Danes less favourably than ethnic Danes. According to three dissenting judges of the European Court of Human Rights, the discrimination reflected a negative stereotype of a lack of integration of Danish citizens with a different ethnic background.

The dissent is interesting as the ban on stereotypes is becoming more pronounced in discrimination contexts and it adheres in particular to previous decisions by the European Court of Human Rights according to which stereotypes on gender or ethnicity cannot justify discrimination. Furthermore, the dissent is worth noting in a children’s rights context, as the dissenting judge points out how the refusal of family reunification forces the couple's (Danish) child into a difficult dilemma: to either grow up in Denmark without his mother or to grow up outside Denmark with both parents. The issue of the child's rights was never raised before the European Court of Human Rights.

Read the Danish Supreme Court's decision U.2010.1035H (Danish)
Read the ECtHR's decision

4. Reports

Gender equality in the workforce: reconciling work, private and family life in Europe

By PhD-student Marta Carneiro

Prepared by Rand Europe and commissioned and funded by the European Commission.

Focusing on conflicts between work, family and private life, this report provides a very targeted and organised analysis of cross-country data that illustrate how highly gendered the way these conflicts are experienced still is; vulnerabilities become even more expressive when considering socio-economic gradients. In line with other studies on the topic, it reveals women and particularly mothers as still lagging behind in labour force participation and earnings, transition to first job and distribution of domestic work, which exposes underlying gender roles, cultural norms and mismatches between policy goals and outcomes.

This report stands out for providing a particularly accessible and supported analysis based on a life-course approach that covers school-to-work transition, parenthood and employment, earnings contributions and sharing of domestic work within couples; it further gives some contributions on ways to improve the efficacy of policy levers such as affordable childcare facilities and flexible working hours to achieve more equality in this context. The report therefore offers the reader a very clear and transversal picture of what gender gaps can be identified and to what extent and why is it that they persist.

Read the report here

Economically poor children in Denmark

By PhD-student Freya Semanda

The European Commission's Network of Independent Experts on Social Inclusion has recently published a report on children and poverty in the EU. Even though the report reveals that Denmark has a relatively low percentage of children at risk of poverty and social exclusion, it notes a tendency towards social and ethnic segregation in education and housing in Denmark, as well as a growth in poverty among children living in single-parent homes. According to the Danish Government’s poverty report for 2014 there are approximately 8,000 economically poor children in Denmark today.

Read the report Investing in Children: Breaking the cycle of disadvantage. A study of national policies 2014
Read the EU Commission's recommendation Investing in children: breaking the cycle of disadvantage 2013 here
Read Danmarks landerapport 2014 here (Danish)
Read the Økonomi og indenrigsministeriets rapport Familiernes økonomi. Fordeling, fattigdom og incitamenter 2014 here (Danish)

5. News, important dates, events

Welma PhD course

Discrimination and equality as a legal research dimension. Awareness of and attention to discrimination and equality as a growing general dimension within a variety of legal areas.
The PhD School and Welma invite all PhD students within the discipline of jurisprudence to a course on discrimination and equality.

Date: 11-12 December 2014
Place: Studiestræde 6, 1455, Copenhagen K, Denmark
Arranged by Welma and the Faculty of Law's PhD school, University of Copenhagen

Read more here

2014 AALS Workshop on Transnational Perspectives on Equality Law

This program encourages participation of legal scholars and fellows based at research or teaching institutions both inside and outside the United States teaching comparative, labour and employment, critical race, constitutional, civil rights, criminal law, immigration, poverty, socio-economics, international law, and international human rights.

Date: 22 - 24 June, 2014
Place: Washington, D.C., USA

Read more here

6. Welma and society: beyond research and law

50 Acts by Wendy Houstoun (movement/theatre artist, UK)

By PhD-student Marta Carneiro

Presented on May 16 2014, at Dansehallerne, Copenhagen, Denmark

Wendy Houstoun's 50 Acts is a solo performance that takes the audience through an unexpected journey of emotions, questions, surprises and much more. It retaliates against ageism and social labels on age. Houston denounces the invisibility of older people and very poignantly challenges the meaning of "old", a meaning that remains blatantly unquestioned in the face of current demographic developments, thus causing unacceptable social inadequacies and waste of human capital. This 60 minute performance plays with contemporary frustrations with too much noise, but not enough meaning, when everything is because everything can be, without questioning. Houstoun ironises the rapid pace of society by delivering an even more rapid piece, at times hard to follow. Unquestionably, it is a deeply engaging performance from beginning to end, one that should not be missed. Houstoun laughs and makes us laugh at what she criticises but it is a vividly harsh and deeply saddening account for what it tells.

50 Acts was one of many performances of a series called Silver Threads, a concept developed by Dansehallerne (Denmark's leading contemporary dance venue) that presented artists over 50. In turn, Silver Threads was included in Thousand Threads – A Special Bundle, which is a platform for experimental and innovative works that brings together Danish and international artists.

More on Wendy Houstoun and 50 Acts
More on Dansehallerne and Thousand Threads – A Special Bundle

 

Kind Regards

WELMA 

WELMA - Legal Studies in Welfare and Market 

Copenhagen University. Studiestræde 6, 1455 Copenhagen. 

+45 35 32 26 26 - www.jura.ku.dk/welma 

Read previous newsletters here (Danish)



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