성차별에서 나타나는 고정관념에 관한 분석

Abstract

Carvalho Pinto de Sousa Morias v. Portugal of the European Court of Human Rights shows how gender stereotypes affect sexual discrimination in the name of tradition. The Carvalho case is relevant to analyze in that it shows the extent to which stereotypes play a role in judicial decisions. Gender stereotypes often provide basis for discriminatory acts in society. State acts as well as court decisions based on stereotypes could create a vicious circle of discrimination. Stereotypical assumptions are often used for justifying unequal treatment. By referring to prejudice, people are deprived of the possibility of escaping from their presumed normality, and this normality is only reinforced. The European Court of Human Rights in the past jurisprudence omitted the comparability test and focused more on stereotypes, but this was not enough. Rather, the European Court of Human Rights should take a more proactive stance to tackle stereotypes based on gender. It is neither possible nor desirable to eliminate stereotypes completely, but it is important to distinguish harmless generalizations from harmful stereotypes. Another problem is that direct discrimination no longer occurs often in the European context due to the non-discrimination provision of Article 14 of the European Convention on Human Rights. To ensure comprehensive protection against discrimination, the European Court of Human Rights must, above all, take into account the existence of more complex forms of discrimination that cannot be directly recognized. The “anti-stereotype approach” provides ways to identify the stereotypes that underlie discrimination. In the field of justice, it is necessary to make efforts not to recognize stereotypes as a traditional or cultural element.
 Gender equality can no longer be put off, not only in Europe, but also globally, and therefore must be committed to addressing the causes of systemic discrimination based on gender. Courts need to play an active role in highlighting the harms of stereotypes and responding not only to their impact, but also to their already existing and widespread presence.