The 23rd of all EU-r rights: equality between men and women and how the Charter contributes
Given that the legal systems of our continent have, for most of their history, been shaped by male-driven processes, the question arises: does the Charter address our daughters just as it addresses our sons?
In fact, there is only one provision in the Charter that specifically addresses women. Article 23 of the Charter is about "Equality between men and women" and establishes that this key aspect of human equality “must be ensured in all areas, including employment, work, and pay," while underlining that this "shall not prevent the maintenance or adoption of measures providing for specific advantages in favor of the under-represented sex."
Beyond this important provision, the Charter appears rather gender-blind as it does not address the situation of women in specific areas of life such as family or education. Neither does it address gender aspects in specific policy areas such as gender bias in taxation or reproductive health rights.1 Perhaps, this comes less as a surprise if one recalls who drafted the Charter: men.2
Admittedly, the English version of the Charter demonstrates some effort to use gender-neutral language.3 Still, one wonders what a gender-focused linguistic analysis of all the 24 language versions of the Charter would tell us in terms of gender equality.4
At the same time, it is important to recall that the Charter should not be read in isolation but in combination with other sources of EU primary law, i.e., the EU treaties, which clearly affirm that the equality between men and women stands at the very core of the EU’s legal and political system.5
The Charter right in action
In Belgium, the Constitutional Court had to deal with legislation that, while permitting parents to give a child the family name of the mother, father, or both, established that, in cases of disagreement or when no choice has been made, the family name of the father would prevail. In this preference in favor of the father, the Court saw a violation of various Charter rights, including Article 23.6
In Austria, an employee of a medical doctor had to face the fact that, for part-time workers, Austrian legislation provided shorter termination periods than for full-time employees. The Supreme Court had to decide, whether this distinction constituted an inadmissible (indirect) discrimination based on gender. The Court recalled that recent statistics confirmed that part-time work was typical for women. It ruled that there is no substantive reason for the unequal treatment and established that the respective provision of the Austrian Employee Act was not in accordance with Articles 21 and 23 of the Charter.7
The Court of Justice has used Article 23 in close to 20 cases, most of them dealing with EU legislation in the context of social policies. One well-known example is the Test-Achats case, named after a non-profit consumer organization that brought a case before the Belgian Constitutional Court, which then referred a request for a preliminary ruling to the EU Court of Justice. The latter declared the respective EU directive invalid because it allowed Member States to maintain, without temporal limitation, an exemption from the prohibition of using sex as a factor in the calculation of premiums and benefits for the purposes of insurance and related financial services.8
The fact that the Court of Justice has dealt with Article 23 in relatively few cases can be explained by the fact that there is a vast array of EU secondary legislation that can be invoked instead of the more general Article 23.
What do Member State constitutions say?
Most national constitutions explictly forbid discrimation based on gender. But many go beyond that and oblige the state to promote factual equality, as is the case for the constitutions of Austria, Germany, Hungary, Italy, Portugal, and Sweden.9 In addition, many constitutions provide specific provisons on political participation and equal pay for equal work. Constitutional texts that explicitly call for equal access to public offices can be found in Belgium, France, Poland, Portugal, and Slovenia.10 For example, the French provison refers to equal access to "positions of professional and social responsibility," while the Polish provision mentions the reception of "public honors and decorations." Constitutions that explicitly require equaly pay for equal work include those of Greece, Malta, Poland, Romania, and Portugal.11 Some constitutions – such as those in Bulgaria, Italy, and Slovenia – still see the need to stress the equal rights of spouses, with the Italian constitution stating that marriage is based on the "moral and legal equality of the spouses within the limits laid down by law to guarantee the unity of the family."12
Examples how EU legislation and policies protect gender equality
In recent years, the EU legislator has continued to harmonize key aspects of gender equality in important areas ranging from employment – such as the Directive on Gender Balance in Corporate Boards13 adopted in 2022 and the Pay Transparency Directive in 202314 – to criminal law, with the Directive on Combating Violence Against Women and Domestic Violence15 adopted as recently as 2024. The European Commission16 and the European Institute for Gender Equality – an EU agency based in Vilnius, having published for instance the "Gender Equality Index" – are regularly tracking the situation of gender equality. In the last year of the EU’s Gender Strategy 2020–2025, the European Commission adopted a "Roadmap for Women’s Rights" which outlines a long-term vision for achieving gender equality.17 The roadmap contains a "declaration of principles for a gender-equal society". Its eight principles have the ambition to "drive forward and steer the gender equality policy agenda in the longer term, inspiring policy measures and gender mainstreaming".18 These eight principles concern the areas of violence19, health, work-life balance, employment, education, political participation, and mechanisms/procedures.20
So what?
So what? Article 23 is a far reaching provision as it establishes an obligation not only to respect equality between men and women but to "ensure" this very equality across all areas, including those beyond employment. This corresponds well to the EU’s mainstreaming obligation laid down in Article 8 TFEU. While the second paragraph of Article 24 does not oblige the EU or the Member States to adopt or maintain special measures providing women with specific advantages, it clarifies that such measures are justified if they, for instance, ease the entry into the labor market for the under-represented sex thereby compensating for existing disadvantages.
Beyond Article 23, women are absent from the wording of the Charter. However this does not mean that other Charter articles cannot be of special relevance for women, as demonstrated by Article 33 on "family and professional life". The recently adopted declaration of principles for a gender-equal society has no legally binding force but represents a useful reminder to interpret the Charter with due regard to the specific circumstances of women – be it as victims of discrimination and violence, or as individuals embedded in a specific socio-economic and legal context that might reproduce or exacerbate inequalities.21
Interested in knowing more? Well, here you are: 'All EU-r rights'. Stay tuned!
Gabriel N. Toggenburg
Gabriel N. Toggenburg is an Honorary Professor for European Union and Human Rights Law at the University of Graz, Austria. He worked as a Senior Researcher for the European Academy Bozen/Bolzano (Italy) from 1998 to 2008. Since 2009, he has worked for the European Union. All views expressed are his own and cannot be attributed to his current or former employers. His blog series "All EUr rights" published on EUreka! aims at making the EU Charter of Fundamental Rights better known. He is grateful for the honor to have every blog entry introduced by a piece of art by Miloladesign.
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