Discrimination and gender stereotypes in judicial decisions. The jurisprudence of the European Court of Human Rights in light of JL v Italy. A retreat into the shadows?

Abstract

Copyright © The Author(s) 2023. This article explores the European Court of Human Rights’ evolving approach to gender stereotypes in judicial decisions under Article 14 of the European Convention on Human Rights (ECHR). In Carvalho Pinto de Sousa Morais v Portugal, the Court found the use of harmful gender stereotypes in judicial decisions to be a breach of Article 14 ECHR using a “novel” approach to establishing discrimination. The novelty, however, appears to have been subsequently diluted in the JL v Italy case. Here, the Court failed to consider Article 14 altogether. Side-lining article 14 in such cases has far-reaching consequences for the individual victim, and conceals the pervasive and systemic nature of gender discrimination. Lack of a robust anti-discrimination analysis also stunts the Court's ability to formulate general remedial action that may contribute towards changing institutional structures which perpetuate harmful gender stereotypes. This article argues that a clear and consistent approach to assessing gender stereotypes under Article 14 ECHR is needed if women's substantive equality is to be practical and effective.