Discrimination as a consequence of the influence of gender stereotypes on the reasoning of a court decision

Abstract

The article shows the seriousness of the impact of gender stereotypes on the court’s perception of the position of a party to the trial depending on its sex and age, as well as on the formation of reasons that the court is guided by when evaluating evidence and making decisions. On the example of the decision of the Grand Chamber of the European Court of Human Rights in the case of Carvalho Pinto de Sousa Morais v. Portugal has demonstrated how gender stereotypes can lead to biased and, as a result, discriminatory judgments, which can lead to a breach of the State’s obligations under the Convention for the Protection of Human Rights and Fundamental Freedoms. The applicant alleged that the Supreme Administrative Court’s decision to reduce the amount initially awarded to her in respect of nonpecuniary damage had amounted to discrimination on the grounds of sex and age, in breach of Article 14 in conjunction with Article 8 of the Convention. She complained, in particular, about the reasons given by the Supreme Administrative Court for reducing the amount awarded to her and about the fact that it had disregarded the importance of a sex life for her as a woman. The author has underlined that in the present case the Court’s task was not to analyse the actual amounts awarded to the applicant by the Supreme Administrative Court. The issue which has to be determined, however, is whether or not the Supreme Administrative Court’s reasoning led to a difference of treatment of the applicant based on her sex and age, amounting to a breach of Article 14 in conjunction with Article 8. In the Court’s view, the wording of the Supreme Administrative Court’s judgment when reducing the amount of compensation in respect of non-pecuniary damage expressed the assumption that sexuality is not as important for a fifty-year old woman and mother of two children as for someone of a younger age. That assumption reflects a traditional idea of female sexuality as being essentially linked to child-bearing purposes and thus ignores its physical and psychological relevance for the self-fulfillment of women as people. In the Court’s view, those considerations show the prejudices prevailing amongst the judiciary in Portugal, especially compare to approach taken in two Portuguese judgments of 2008 and 2014, which concerned allegations of medical malpractice by two male patients who were fifty-five and fifty-nine years old respectively. The case of Carvalho Pinto de Sousa Morais v Portugal is neither only nor the first case addressing the question of gender discrimination in connection with judgments of the national courts, hoverer, the key one. This case proves that gender stereotypes and outdated perception of gender roles played a significant role in judicial assessment and decision-making which can lead to the gender-based discrimination. Key words: discrimination, sex, age, gender stereotypes, court decision, judgment.