Deeply anchored? Gender stereotypes and (social) law | Max-Planck-Institut für Sozialrecht und Sozialpolitik - MPISOC
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Deeply anchored? Gender stereotypes and (social) law

Already in 2003, the German Federal Minister for Family Affairs, Renate Schmidt, stated that "legal equality between women and men has been achieved" (Bundestag protocol 15/31, 13.03.2003, p. 2379 (B)). However, today, more than 20 years after this statement, given the persisting gender-pay and gender-care gap, it must be concluded that real equality has still not been achieved. How can this discrepancy between the (presumable) attainment of formal legal equality and the persisting de facto inequality between women and men be explained?

Gender stereotypes may be one explanation for this disparity. Research in the field of social psychology indicates not only that gender stereotypes, and thus ideas about typical women and typical men, have proven resistant to change; it also suggests that stereotypes are part of natural cognitive categorisation processes that guide human thought and behaviour unconsciously on a daily basis. This interdisciplinary thesis uses the findings of social psychology in order to pursue and expand academic legal knowledge. It proceeds on the assumption that gender stereotypes, beyond imperceptibly influencing everyday life, also influence everyday law. After all, it is human beings who make and apply the law.

More specifically, the dissertation poses a two-part research question. First, it asks whether the state is obligated to eliminate gender stereotypes embedded in the law. Second, it asks how legal rules that could promote traditional gender stereotypes can be identified. The aim is to compile a list of specific laws that provide an ‘anchor’ for the perpetuation of negative gender stereotypes. They may do so either because the substance of the law reflects the content of a traditional gender stereotype or because the law makes it easier, in a purely practical sense, for people applying it to draw upon gender stereotypes.

The main point of reference for the study is social law – an area of law in which the family, its needs and its protection play a special role. This allows for the assumption that ideas about gender, the characteristics of women and men, and their roles within the family will have a strong influence on social legislation and its application.

The dissertation starts with the presentation of the basic social-psychological findings on (gender) stereotypes. The cognitive processes of stereotyping will be explored: Why does the human mind regularly resort to stereotypes? What are the positive and negative consequences associated with stereotyped thinking? How does the content of a stereotype form? How can the content of a stereotype as supposedly socially shared knowledge be changed? Why are some traits and behaviours considered typically male or typically female? And finally, can stereotyped thinking be avoided or controlled?

Against this background, the study further examines the first research question, i.e. whether the state is legally obliged to counteract gender stereotypes that are entrenched within the law. To this end, not only national constitutional law, but also European and international law are considered. It will be argued that pursuant to Article 3 (2) sentence 2 of the German Basic Law in conjunction with Article 5, Article 2 (f) of the UN Convention on the Elimination of All Forms of Discrimination Against Women the German state in fact has an obligation to actively examine both codified law and the application of law by the administration and the judiciary for the perpetuation of negative gender stereotypes. Further, the state must counteract such a consolidation of negative gender stereotypes.

In order to answer the second research question, a methodology will be developed that allows for the identification of laws in which gender stereotypes are entrenched. For this purpose, existing methodological approaches assessing the gender equality of legal regulations (gender mainstreaming, legal impact assessment, etc.) will be drawn upon. It is to be examined to what extent these approaches can serve the goal of detecting norms in the German Social Code (SGB) that reinforce gender stereotypes. In light of the social-psychology findings mentioned above, they will then be modified and further developed.

Finally, the developed research method will be applied to different areas of social law. The exemplary cases to be studied in this context are derived from the state's obligations under the UN Convention on the Elimination of All Forms of Discrimination Against Women. They include: basic income benefits (SGB II and SGB XII), healthcare benefits under SGB V, social insurance in the agricultural sector, and developments in times of crisis (COVID-19 pandemic).

Author(s)
csm_Foto_Madeleine_Beul_900fde78fb

Madeleine Beul