Introduction
Much ink has flowed in documenting, assessing, and rethinking the rule of law crisis in Europe, including in the pages of this journal.Footnote 1 The crisis has led to a reassessment of the institutions and norms with which both the EU and the Council of Europe are armed to respond to attacks on the rule of law. It is fair to say, though, that however comprehensive legal accounts of the causes, manifestations and possible solutions to democratic backsliding have been, they have tended to be rather unifocal. Their main target has been judicial independence, tracked at various levels of judiciaries under fire in countries in Central and Eastern Europe in particular. To the extent that the gendered nature of the democratic backsliding underway has been noted and addressed, it has either been seen as disconnected from the rule of law crisis as such, or else subsumed to the broader package of rights under attack. The centrality of gender to the authoritarian populist legal and constitutional project has not been wholly appreciated, an omission this article sets out to correct.
The fact that the democratic backsliding we have witnessed in Europe is tied to conservative and authoritarian populist projects is not a novel finding.Footnote 2 However, in Central and Eastern Europe in particular, these projects are grounded in a particular, explicitly anti-liberal, anti-egalitarian vision of gender and the family.Footnote 3 Importantly, as I will argue, these anti-rule of law playbooks are only incompletely understood unless the gendered dimension of authoritarian populist attacks is also grasped. In other words, the anti-gender backlash and retrenchment is more than a side effect or afterthought. Rather, it thickens the ideological content of the now-global authoritarian populist project.Footnote 4
This is not the same as saying the gendered aspects of populism and illiberalism have gone unnoticed.Footnote 5 Indeed, this article builds on the findings of scholars in the social sciences who have assiduously documented the gender equality backlash and retrenchment of traditional gender roles in recent years, in Central and Eastern Europe and beyond. Gender has a unique affinity to illiberalism and, because it is also a concept so difficult to pin down, has been relied on as a ‘symbolic glue’ for states engaged in illiberal backsliding.Footnote 6 Nor have constitutional scholars been entirely ignorant of the gendered nature of the backsliding before their eyes, of course.Footnote 7 It is still the case, however, that much more work remains to be done in legal scholarship, and especially that focused on the European rule of law crisis and backsliding in Central and Eastern Europe, to name and respond to the phenomenon as gendered. As I will seek to show, this is in no small part due to the need to reassess foundational normative commitments that this enterprise would require. These include a gender-neutral vision of the rule of law.Footnote 8
This article proceeds as follows. The first three sections map three types of anti-gender measures adopted by a variety of countries in Central and Eastern Europe in particular, though parallels will be drawn beyond the region where relevant. These are: (1) opposition to the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (hereinafter Istanbul Convention) and the rise of a war against so-called ‘gender ideology’; (2) increasingly restrictive reproductive rights regimes, including but not limited to access to abortion; and (3) the retrenchment of the ‘traditional’ family and traditional gender roles, purported to be under attack. These are part of a broader global anti-gender playbook developed transnationally and aimed at both dis-establishing gender equality advances and legally entrenching regressive, exclusionary understandings of gender, gender and sexual minorities, and women’s rights.Footnote 9 They partly overlap, as underpinning them all are certain shared understandings of gender, the family, and women’s roles within it. For reasons of space, the myriad attacks on LGBTQI+ rights are referred to piecemeal and in connection to the three strands just detailed. This is certainly not meant to minimise their importance as targets of attacks against gender equality. The fourth section then shifts the focus to the responses to the rule of law crisis by European institutions, arguing that these too have been gendered. Their reactions to the anti-gender moves detailed here have often been incomplete, incoherent, ambivalent, or outright ignorant of the gendered nature of the legal attacks documented. Jurisdictional and competence-based explanations only partly explain this. The final section offers an explanation for the failure to fully grasp the gendered nature of the rule of law crisis and to integrate a gender-sensitive lens in responses to it. I will argue that the particular understanding of the rule of law in the EU especially and in the Council of Europe as well, coupled with an underdeveloped set of protections for gender equality, have contributed to the gender uncritical response to the rule of law crisis in Europe.
The main target of this article is the legal scholarship on the rule of law crisis, democratic backsliding, and authoritarian populism, in particular that focused on Central and Eastern Europe (primarily Hungary and Poland). As I will show, much of this scholarship has remained silent or else has minimised the centrality of gender in the crisis and for these populist actors. Looking at the surge of restrictions on women’s and LGBTQI+ rights in isolation and without fully grasping the interlinkages with a broader, incremental, transnational, and coherent natalist, familist, and collectivist agenda, risks missing the fact that these anti-gender features are a feature, not a bug of the rule of law crisis. No less significantly, however, we must reflect on the inadequacy of our supposed gender-neutral legal concepts – the rule of law among them – and on how this gender myopia has itself facilitated the crisis.
In making this central argument, I draw on feminist jurisprudence and its critiques of the conceptual foundations of liberal constitutionalism.Footnote 10 In this pursuit, I am not interested in siding with either feminist critiques that seek to jettison the liberal constitutional project entirely or with those that wish to rescue it. Instead, I intend to highlight the missing referent – gender – in understandings of the rule of law in the European rule of law crisis. Following Robin West, this would entail revealing the missing gendered values simply not incorporated into the idea of the rule of law underpinning these debates, or – as she put it – values that ‘are not recognized as values by the Rule of Law, and the dangers attendant to that state are not recognized as dangers by the Rule of Law’.Footnote 11
In particular, I build on the observation that the rule of law as deployed in most legal discourse is an inherently conservative concept.Footnote 12 When thus constructed, its emphasis on restoration of the status quo ante as a response to crisis is antithetical to a transformative agenda and, as I will show, is partly responsible for the subdued response to the gendered rule of law crisis in Europe.Footnote 13 While it will become clear that my analysis indeed implies a substantive understanding of the concept,Footnote 14 it adds and builds on feminist critiques of rights which too often are also missed by the proponents of a substantive conception of the rule of law.Footnote 15 Thus, feminist legal scholars have shown how the mainstream idea and body of rights as enshrined in liberal constitutionalism often rest on gendered assumptions: of a gender-neutral bearer of rights, judge, and lawmaker, as well as of an enduring divide between the public and private spheres, with the latter insulated from state action.Footnote 16 They have also shown that discrimination is compounded by the intersectional identities of those subjected to it.Footnote 17
The consequences, in the context of the gendered democratic backsliding processes discussed below, are stark. The weak European responses to a retreat from the fight against gender-based violence, regression on reproductive rights, and the constitutional and legislative entrenchment of a patriarchal and exclusionary notion of the family are in no small part explained by the gender understanding of the rule of law underpinning them. Autocratic populists have not only attacked gender equality, but also weaponised the gender equality discourse, distorted its meaning, and claimed to be its fiercest defenders. We are witnessing widespread attacks on the most basic and hard-fought achievements of the fight for gender justice, including the idea that gender is socially constructed rather than biological destiny and that law should be used as a tool of emancipation and empowerment, rather than oppression and exclusion.Footnote 18 It is thus our duty as legal scholars to call out the rule of law crisis, in Europe and elsewhere, as the gendered crisis it is.Footnote 19
Opposing the Istanbul Convention and so-called ‘gender ideology’
Beginning with the Istanbul Convention is a deliberate choice. As we will see, it allows us to track the rule of law and democratic breakdowns in the countries under study to years earlier than many existing legal accounts do.Footnote 20 The latter’s almost exclusive focus on attacks on the judiciary and on institutional measures tends to miss the gendered discursive, policy, and legislative developments that pre-dated them. Many country-based or regional studies of the rule of law crisis in Central and Eastern Europe do not even mention the Istanbul Convention and backlash against it as part of the ‘origin story’ of democratic backsliding there.Footnote 21 The same is true of legal analyses of European institutions’ inadequate responses to the crisis.Footnote 22
Percolating in both wider society and political debate for a number of years, mobilisation against the Istanbul Convention would eventually ‘bloom into’ a full-blown rejection of so-called ‘gender ideology’ in countries such as Poland, Hungary, Bulgaria, and Romania. As we will see, the constitutional and legislative outcomes in each vary. What remains, however, is a reinforced cross-national discourse which casts the Convention, and the wider gender equality agenda it is taken to represent, as a foreign imposition with destructive objectives. Also part of the now-dominating story of the rule of law breakdown in these countries must be the interconnectedness between measures such as restrictions on judicial independence, free media and elections, and accountability bodies, and the concerted disestablishment of gender equality advances and the retrenchment of traditional gender roles and family policies. Equally, part of the reassessment of the focus and effectiveness of European responses has to be the degree to which they also addressed this deeply gendered backsliding.
If we begin with Poland, anti-gender mobilisation can be traced back to the country’s signing of the Istanbul Convention in 2012. Spearheaded by the Catholic Church and lay conservative forces (including conservative women’s groups) the campaign against the Convention was premised on its view of gender as socially constructed (Article 3 of the Convention) and the requirement that states adopt positive measures to promote societal and cultural change in the behaviour of women and men (Articles 12–16).Footnote 23 The campaign also adopted a distinctive understanding of anti-colonialism, aided by the Vatican’s rhetoric, which considers gender equality as an ideology imposed by Western elites by ‘simply equat[ing] gender egalitarianism with colonization and often compar[ing] it with twentieth-century totalitarianisms and global terrorism, or even the deadly Ebola virus’.Footnote 24 While Poland would ratify the Convention two years later, it would do so with a far-reaching declaration essentially subordinating the Convention’s implementation to the national constitution, as well as adding several reservations.Footnote 25
The Convention’s ratification happened on the eve of the electoral success of the Law and Justice party (Prawo i Sprawiedliwość, hereinafter also PiS), whose rhetoric left no doubt about its stance in this growing ‘war on gender’. Press revelations in December 2016 indicated the Government’s plans to withdraw from the Istanbul Convention, which PiS denied.Footnote 26 Nevertheless, prominent politicians continued to dismiss the usefulness and framing of the Convention as a tool to combat violence against women. Then-President Duda, for example, stated that its application was unnecessary given that Polish law on the matter was very good.Footnote 27 And then-Prime Minister Morawiecki opined that ‘there is no violence where family bonds are cared for, where there is a normal home and love. Violence occurs more often in de facto relationships, relationships other than those recognised by law.’Footnote 28 This view encapsulates a truth about the illiberal transformation in Poland and elsewhere in the region: the intertwining of anti-gender policies and family mainstreaming.Footnote 29 As we will see shortly, furthermore, it is a particular view of the family – heteronormative, ‘traditional’ – that this entails. Moreover, Poland has also exported its opposition to the Istanbul Convention, such as by calling on the European Commission to stop the EU’s own ratification and by initiating the Convention on the Rights of Families as an alternative.Footnote 30
In Hungary, in partial contrast, the opposition to the Istanbul Convention came later. While the country had signed the treaty in 2014, it was only once ratification consultations began in 2017 that it came to be referred to as a ‘Trojan horse of gender ideology for Hungary’.Footnote 31 As in Poland, the official position quickly became that the Istanbul Convention was both dangerous – importing an alien conception of gender into Hungarian law – and unnecessary, given that legal measures already sufficed to combat violence against women. The protracted public consultations also saw men’s/fathers’ rights groups become especially vocal, concerned about the consequences of ratification on discrimination against men and boys.Footnote 32 A particular additional feature of the Hungarian anti-Istanbul Convention discourse was tying it to the issue of migration, by rejecting gender-based violence as a condition for granting asylum.Footnote 33 Like Poland, Hungary became a prominent exporter of this anti-gender discourse and one of the first signatories of the Convention on the Rights of Families. A difference between the two countries, however, is in the degree to which opposition to the Istanbul Convention has been overtly gendered. While this has been the case in Poland, Hungarian discourse has adopted more indirectly gendered frames, such as child- and family-protective frames which erase the gendered nature of violence, and men’s rights frames, which rely on false equivalences between the violence women and men are subjected to.Footnote 34
As we have seen, the claim that domestic law suffices in the fight against violence against women was embraced by both the Polish and Hungarian authorities. In Bulgaria, however, this claim was elevated to the level of constitutional doctrine when the Bulgarian Constitutional Court infamously declared the Istanbul Convention incompatible with the national constitution in 2018.Footnote 35 The Court had been petitioned by 75 Members of Parliament, mainly from the major coalition party in power at the time, following an intense public and political backlash against ratification.Footnote 36 The by-now familiar refrain of opposition can be identified in the arguments embraced by the majority opinion: that gender as a socially constructed concept is alien to, and incompatible with, Bulgarian law; that sex is binary and biologically determined; and that the Istanbul Convention is a vehicle for covertly introducing ‘gender ideology’ in the legal system.Footnote 37 Moreover, the majority embraced a rule of law-based argument as well, seeing the introduction of an ambiguous term such as ‘gender’ under the Istanbul Convention and the Convention’s purported internal contradictions as contravening Bulgarian constitutional law’s prohibition on legal uncertainty.Footnote 38 The decision’s sensitive timing was explicitly noted by two dissenting judges, who wrote that the majority’s intervention was a favour to ruling politicians and served to prevent a conflict within the then-coalition Government.Footnote 39 The Bulgarian Court majority’s insistence that sex be seen as both biological and binary, as well as of its commitment to protecting so-called Bulgarian traditional values, would be reinforced three years later in a binding interpretive decision effectively banning the legal gender recognition of transgender individuals.Footnote 40
This brief account is not meant to be comprehensive of either discourse against the Istanbul Convention or moves against so-called ‘gender ideology’ in Europe. Illustrative though it may be, however, it allows for the identification of common patterns and ‘obsessions’ underpinning the anti-gender playbook in Europe: a rejection of gender as socially constructed and a desire to affirm its biological, binary nature; intimately tied to this, a ‘traditional’ view of gender roles and the family, which the state is to protect; and a rejection of the ‘Other’ as rights-bearer, such as the migrant and the LGBTQI+ individual. It thus complements the introductory piece to this special issue, which similarly views anti-women and anti-LGBTQI+ attacks as intrinsically connected.Footnote 41
Moreover, the focus on the rejection of the Istanbul Convention also shows the normative and strategic underpinnings of transnational anti-gender mobilisation. Poland reached out to its Central and Eastern European neighbours to encourage them to resist ratification. The success of its call – six countries in the region currently have not ratified the Convention: Bulgaria, Czechia, Hungary, Latvia, Lithuania and Slovakia – has also made it much more difficult for the EU to ratify the Istanbul Convention (more on which below). As recently as January 2024, the Czech Senate narrowly voted against ratification, with opponents arguing that the Convention would upend the ‘traditional’ roles of men and women in Czech society.Footnote 42 Turkey’s withdrawal from the Istanbul Convention in 2021 equally signalled the ‘fading credibility of the EU conditionality’ in this area, coupled with a domestic linking of policies reinforcing the traditional family and an anti-LGBTQI+ agenda.Footnote 43
Restrictions on reproductive autonomy
When telling the story of reproductive autonomy regression in Central and Eastern Europe, it may be tempting to start with the Polish Constitutional Tribunal’s infamous 2020 decision which ruled unconstitutional one of the already highly restrictive grounds on which lawful abortion could be sought in the country.Footnote 44 In its decision, the Tribunal (already delegitimised by then through the unlawful appointment of several judges following the electoral win of PiS in 2016) ruled unconstitutional the abortion ground involving a serious defect of the foetus, i.e. a high probability of grave or irreversible foetal impairment or a diagnosis of an incurable and life-threatening condition. It did so invoking the constitutional protection of the life of every person (Article 38 of the Polish Constitution) and of the inviolability of human dignity (Article 30). In this way, the always precarious ‘abortion compromise’ Poland had reached in 1993 – legislation allowing abortion on limited grounds adopted as a compromise between opposing political forcesFootnote 45 – was finally put to rest.Footnote 46
The judgment’s impact has been significant. There have been six deaths linked to medics’ failure to intervene in the case of non-viable pregnancies, as well as thousands of cases of Polish women being forced to travel abroad to obtain their terminations.Footnote 47 The European Court of Human Rights ruled in December 2023 that the 2020 judgment, and the ensuing situation on accessing lawful abortion in Poland, constituted a violation of Article 8 of the ECHR.Footnote 48 As we will analyse below, however, the European Court of Human Rights’ judgment rested on rule of law considerations, given the unlawful election of judges to the Constitutional Tribunal that removed the foetal abnormality exception. As in previous case law, the Strasbourg court declined to read a right to abortion into the Convention and stopped short of finding that the psychological burden imposed on the applicant (who would have to travel abroad to obtain her termination) passed the threshold of severity to constitute a violation of Article 3.Footnote 49
While hugely momentous, the 2020 judgment represents the culmination of a series of measures restricting women’s reproductive autonomy in Poland.Footnote 50 Attempts to limit access to abortion were quick to follow PiS’s electoral success in 2015. In April 2016, a citizens’ initiative centred around the ‘Stop Abortion’ campaign delivered well over the 100,000 signatures needed to table a Bill in Parliament that would criminalise both women seeking abortions and doctors performing them, while maintaining only one ground for lawful terminations: saving the woman’s life.Footnote 51 In September 2016, the Sejm (lower house) voted to continue working on the Bill while at the same time rejecting a competing citizens’ initiative-generated Bill that sought to liberalise access to abortion. What followed was the women’s ‘Black Protest’ and strike, which forced a retreat in parliament and the Bill being shelved. As we now know, that would turn out to be a pyrrhic victory for women’s rights advocates, and what could not be achieved legislatively in 2016 was accomplished with the aid of the captured Constitutional Tribunal in 2020.
The abortion issue cannot be looked at in isolation from other reproductive and sexual health rights, however. In May 2017, a Government-drafted Bill was passed that limited access to the only emergency contraceptive pill available over the counter in Poland.Footnote 52 That limited access had been itself the result of the C(2015)51 ruling of the European Commission, which had authorised the sale of the pill in question, without prescription, throughout the EU. The 2017 legislative change, justified on account of a supposed misuse by teenagers, reintroduced the need for a doctor’s prescription and raised the age of those who could access this form of emergency contraception from 15 to 18. It has been the target of Prime Minister Tusk since getting reelected in 2023, with his coalition Government passing a Bill that would have restored access to its pre-2017 terms; President Duda vetoed the Bill in March 2024, however.Footnote 53 Moreover, the Tusk Government continues to struggle to find a way to deliver on its promise to liberalise access to abortion, with competing Bills prepared but unable – as of the time of writing – to garner the majority needed in Parliament due to splits in the governing coalition.Footnote 54
It is not just through outright legislative change that such restrictions have been implemented. Changing the interpretation of existing laws has also been a means of achieving the same aim – de facto limiting access to pregnancy terminations. For example, the Polish Penal Code already contained a provision punishing anyone who helped a woman procure an abortion in violation of the law, including the provision of information on access to abortion, with up to three years in prison (Article 152). In November 2016, the National Prosecutor’s Office – based on a memo prepared by the conservative think tank Ordo Iuris – extended the interpretation of this provision to also cover providing information on accessing abortion abroad.Footnote 55 These changes were part of what human rights defenders have termed a concerted ‘witch hunt’, accompanied by sweeping and invasive searches, police interrogations and even prosecutions of those seeking, providing, or aiding those who seek a termination.Footnote 56 These measures have created, as intended, a climate of fear and intimidation. Moreover, Poland now also holds the dishonour of being the first European country to have convicted an abortion rights activist, Justyna Wydrzyńska, for abetting a woman in obtaining the abortion pill.Footnote 57
Hungary’s moves in the direction of restricting reproductive rights may have garnered comparatively less international attention but are no less clear in their aim. From the passing of the 2011 new Fundamental Law, the Government’s priorities in this area were clear. The Fundamental Law now explicitly protects foetal life and dignity from the moment of conception (Article II). To international human rights bodies expressing concerns about the provision’s propensity to lead to restrictions on access to lawful abortion, the Hungarian Government offered reassurances that this would not occur.Footnote 58
At the same time, however, Hungarian authorities ran anti-abortion campaigns – financed with EU money – and maintained mandatory dissuasive counselling before women could access pregnancy terminations.Footnote 59 Thus, while abortion remains legal up to 12 weeks, a woman seeking an abortion must attend two counselling sessions: one to inform her of other options, including adoption; and the other to inform her of the dangers of surgery.Footnote 60 It is a particular irony, though not unique to the abortion context, that the Hungarian Government used EU funds to finance its democratic backsliding and rights regression. At least in the case of the 2011 anti-abortion and pro-adoption billboard campaign doing so, the European Commission ‘called upon Hungarian authorities to stop the campaign immediately and communicated the consequences of inappropriate use of the Progress Fund money’.Footnote 61
The situation in Hungary worsened when the country adopted its own version of a ‘heartbeat law’ in September 2022.Footnote 62 Inspired by similar laws adopted in various US states, a foetal heartbeat law had been proposed by the far right party Jobbik as early as 2016.Footnote 63 As a consequence of its passing, doctors in Hungary must now provide women with ‘a clearly identifiable indication of foetal vital signs’ before performing any abortion. As a consequence of the tightening of the legal regime on abortion, but also because services are overstretched so access is de facto impeded, it is now reported that dozens of Hungarian women travel abroad weekly to obtain terminations.Footnote 64
As I will discuss in the next section, these restrictions on reproductive autonomy form part of broader natalist policies pursued by both governments. They compound an already bleak picture of increasingly narrow de facto access to abortion services in Europe.Footnote 65 For example, a recent report on access to abortion in Romania found that over 80% of public hospitals simply did not offer the procedure and that many, misrepresenting the law to their patients, offered abortion on more restricted grounds than the law provided, or simply referred women to the more expensive private hospitals instead.Footnote 66 This despite abortion being legal up to 14 weeks and nominally available as a paid service in public hospitals, and despite a gruesome experience with criminalising abortions during Romania’s Communist period.Footnote 67 The increasingly narrow access to abortion has an intersectional dimension, as growing restrictions have a disproportionate impact on women without the economic and informational resources to simply travel abroad or go for private care when in need of a pregnancy termination. Thus, a crisis of reproductive choice is afoot in Europe that is compounded by, but not reliant on, the rule of law crisis.
It should also be noted here that the legal literature on democratic backsliding has been uneven in its recognition of the far-reaching gendered impact of the legal moves detailed above. Certainly in the case of the 2020 Polish decision, it would have been difficult to avoid the conclusion that the practical outcome of the judgment was forced birth (especially in the case of those who could not afford to travel abroad for a termination) and an enormous burden on women to act as ‘heroines’ in carrying to term unviable and severely compromised pregnancies.Footnote 68 It is also true that the inextricable link between violations of the rule of law and restrictions on women’s rights was laid bare by the decision. Nevertheless, many legal scholars saw in the judgment ‘a crucial illustration of how illiberal constitutional courts contribute to the erosion of democratic norms’Footnote 69 and condemned the ‘illiberal judicialization of politics’Footnote 70 that the Constitutional Tribunal had brought about. In other words, legal scholarship saw here just another facet of a dual attack on human rights and the rule of law. The gendered nature of this attack, and its exploitation of a particular, gender-neutral understanding of the rule of law present in both national and European law, tend to be lost in such accounts.
The retrenchment of the ‘traditional’ family
I now wish to briefly turn to the central role of the ‘traditional’ family in the discourse and legal measures adopted in Poland and Hungary in particular. The protection and promotion of the ‘traditional’ family is indissolubly connected to both the war on ‘gender ideology’ discussed above, which has been reviled as a supposed stealth attempt to subvert ‘traditional’ gender role and family values, and to restrictions on reproductive autonomy also discussed above, with the promotion and retrenchment of the ‘traditional’ family a natalist response to fears of demographic decline.
There is of course also a link here to the rejection of extending legal recognition to same-sex couples, seen as deviating from the very narrow, heterosexual, procreative definition of marriage and family embraced in many countries that are experiencing democratic backsliding.Footnote 71 The latter, a phenomenon spanning beyond the cases of Poland and Hungary discussed below,Footnote 72 exceeds the scope of this article. Suffice to note here that attempted or successful constitutional redefinitions of marriage and the family as a union between a man and a woman, often achieved via national referendums, are part of this story. There is now a clear East/West divide in Europe on the issue,Footnote 73 and recent interventions by the Strasbourg court may well trigger more resistance and backlash.Footnote 74
Scholars who seek to avoid a black and white picture of populism, including in Europe, focus on economic and welfare policies, arguing that even would-be authoritarian populists in power may be addressing real needs of their left-behind citizenry.Footnote 75 A favourite example in this line of argumentation is that many of PiS’s policies are designed to tax foreign investment in order to support Polish families and workers, especially in rural areas and small towns, in particular the Family 500+ programme detailed below.Footnote 76 Hungary’s redrawing of its social contract under Orban, with new forms of support for families, has been viewed more critically, insofar as it has been restricted to middle class recipients in employment and has ignored the more downtrodden.Footnote 77 Nevertheless, in such political economy analyses of populism, Hungary and Poland are both discussed as attempting to break with the neoliberal consensus and exhibiting ‘a particular form of economic nationalism that emphasizes workforce activation, natalism, and sovereignty’.Footnote 78 I will argue that such accounts tend to minimise or outrightly ignore the gendered framings underpinning these welfare policies, the exclusionary understanding of the family they promote, and the restrictive role they ascribe to women – as mothers and carers, not as autonomous subjects. And, while ‘neoliberal precarity’ is real, it has been directly used as a driver of gender policy backsliding.Footnote 79
Poland’s Family 500+ was launched in April 2016 and consisted of child benefits amounting to PLN 500 (€120) for every child in a family whose per capita income was below PLN 800 per month, and for every second and subsequent child regardless of family income.Footnote 80 It was introduced explicitly as a pronatalist measure aimed at boosting fertility, but also as one that increased women’s choice (thus appropriating the ‘pro choice’ language of women’s rights activists) and as an anti-domestic violence measure.Footnote 81 The latter was justified on account of the benefits allowing women in abusive relationship to ‘free themselves from violent relationship’, a claim disputed by many Polish feminist organisations.Footnote 82
Hungary’s family-centred policies since Orban has come into power have been driven by his avowed obsession with demographic decline.Footnote 83 Article L(1) in the 2011 Fundamental Law defines marriage as between a man and a woman and declares ‘the family as the basis of the survival of the nation’. Article L(2) further declares that: ‘Hungary shall encourage the commitment to have children’. The 2014 Family Protection Law further enshrined the constitutional commitment to the heterosexual family and marriage, as well as the protection of foetal life from the moment of conception discussed above.Footnote 84 In 2020, the Fundamental Law was amended so that Article L(1) now also states that ‘The mother is a woman, the father is a man.’ Moreover, Article L(2) now also takes aim at transgender children, purportedly to protect against self-identification as anything other than sex at birth. The provision states:
Every child has the right to such protection and care as is necessary for his or her physical, mental and moral development. Hungary protects the right of children to a self-identity according to their sex at birth and provides an upbringing in accordance with the values based on Hungary’s constitutional identity and Christian culture.
What has aptly been referred to ‘family mainstreaming’ in Hungary thus blends together a whole host of issues under the umbrella of family protection. Even beyond these, however, in public statements if not in overt legislation, Hungarian authorities have directly tied abortion liberalisation to declining fertility rates.Footnote 85 Even combatting domestic violence was recast in terms of protecting children and the family.Footnote 86
When it comes to Orban’s redistributive credentials, the picture is not much rosier. Care-related policies developed since he has taken power have been income-based, aimed at supporting working families via means such as tax breaks, family taxation, and benefits. In practice, these have advantaged the ‘right’ kind of families and disadvantaged others, as evidenced by the concomitant failure to index-link the universal family allowance since 2009 which resulted in a devaluation of about 20% as of 2019.Footnote 87 Throughout his years in power, Orban has promoted his care-related policies explicitly as means to boost the country’s fertility rate. When he has addressed them, he has addressed women as potential mothers and solely responsible for care work.Footnote 88 And throughout, of course, the only acceptable version of the family, and the only one deserving of protection in the eyes of the Hungarian Government, has been ‘a family which is based on the marriage of a man and a woman, who raise together their (biological) children, preferably under middle-class socioeconomic conditions’.Footnote 89
Some legal scholars have praised Family 500+ as ‘the most ambitious social policy reform undertaken in the region after 1989’.Footnote 90 They have been on the whole positive about both countries’ substantive welfare policies and more likely to criticise them for being ‘ill-advised because they couldn’t be sustained’ than for any gendered understanding of their premise or impact.Footnote 91 Without any regard to their gendered implications, these scholars focused on justifying the policies as consistent with defensible versions of constitutionalism, albeit not a liberal one.Footnote 92 This has been a much-debated topic among scholars of populism, and the defence of such policies has come as a response to those who dismiss the authoritarian populism of Hungary and Poland as entirely anti-constitutionalist.Footnote 93
However, gendering our analysis of the policies discussed above allows us to question their welfarist and redistributive claims. We need only listen to Polish and Hungarian feminists in order to do this. In the case of Poland, there was a certain ambivalence about Family 500+ even among feminists given that a certain degree of redistribution did take place. Yet it is fair to say that this came at a high cost for women: they were relegated to the role of mother and not encouraged to (re)enter the labour force after childbearing. Instead of social justice, the programme ‘defines childcare solely as women’s task within a heterosexual family unit with financial, rather than infrastructural support from the state’.Footnote 94 A subsequent decision to lower the retirement age for women to 60 as compared to 65 for men also hid the gendered disparity of its impact: given their higher likelihood of having been out of work during periods of maternity leave and of being paid less, women remain more likely to have smaller pensions than men. Moreover, women who have retired early are ‘expected to contribute to the extended household, thus cementing their poverty and role as the primary caregivers within the traditional family model’.Footnote 95
Hungary’s care transformation under Orban has been perceptively described by Eva Fodor as a form of ‘carefare’.Footnote 96 By this, she means to appropriate the notion of lawfare developed in other contexts to mean ‘a form of state response to the care crisis, a set of social policies, policy implementation and related discourse within an anti-liberal political culture and an authoritarian capitalist economy’.Footnote 97 In other words, the care crisis is real and requires addressing; however, the Hungarian Government’s chosen policies to do so are carefully designed to benefit the few, not the many, and to pursue illiberal and authoritarian objectives. She thus argues that Hungary – though this could be expanded to other national contexts as well – ‘provides limited financial advantages for a select group of women, while simultaneously increasing their devalued work burden both in and outside the household: it feeds a growing underclass of women workers’.Footnote 98
Indeed, her analysis resonates with the findings of the European Parliamentary Forum for Sexual and Reproductive Rights when documenting the cash flows that support the various illiberal projects in Europe. The Forum’s report on the issue cautions against looking for a single aim of these projects, where instead there are several, interrelated ones:
Understanding the multiplicity of objectives then opens the door to better understanding the phenomenon, and therefore how to counter it, as well as the possibility to forge new alliances. Anti-gender objectives constitute a normative project in their own right and equally constitute a component of related political and economic projects. These overlapping projects fall into three broad categories: a theocratic project, a hyper-capitalist economic project and an illiberal political project.Footnote 99
Decrying rule of law backsliding but defending the supposed welfarist polices of the same populist authoritarian actors is to miss that they are not separate projects, but support and reinforce each other. And of course, it is to miss the feminist warnings that such ethics of altruism, which require women to self-sacrifice in the name of the family and enshrine this duty in law, only further entrench patriarchal power.Footnote 100
Gendering responses to the rule of law crisis
It would be impossible to map all responses to the rule of law crisis at the European level. I will instead focus on direct engagement, where it has occurred, with the three sets of measures adopted by backsliding states detailed above. I will mainly focus on the EU as a normative actor, looking especially at the European Commission’s actions and inactions and to a lesser extent on the interventions of the European Parliament. When it comes to the Council of Europe, I will focus on the European Court of Human Rights as the judicial body whose interventions are, while highly contested, still formally binding on member states. I am primarily interested in assessing the effectiveness of these responses to the gendered nature of the rule of law crisis.
As will become apparent, these responses have been either (or both) slow and piecemeal (especially in the case of the EU) or incomplete and at times incoherent (particularly when it comes to the European Court of Human Rights). The reasons for these shortcomings are complex and not exhausted by the gender-based analysis. In addition to the more limited, gender uncritical view of the rule of law, we may also look to further explanatory factors. In the case of the EU, these include: the nature of the attacks on the rule of law (at least initially seeming unconnected to gender, or not even attacks at all, as when dealing with welfare measures), the Union’s own persistent blind spots and lack of intersectional understandings of gender, and the widening gaps between member states when it comes to gender equality. In the case of the European Court of Human Rights, they include its own doctrinal limitations, such as its underdeveloped engagement with discrimination claims under Article 14 of the European Convention and its struggles to move from a formal to a substantive conception of equality in its case law. All these shortcomings are discussed further below, with illustrations from responses to the rule of law crisis in Central and Eastern Europe.
The EU as an ambivalent normative actor
We cannot fail to note that the EU’s own ambivalent position vis-à-vis the Istanbul Convention has weakened its ability to take a forceful stand on its rejection by member states. In fact, the EU’s action in combatting violence against women was a mixed bag even prior to ratification of the Convention being on the agenda. The reasons for this have been attributed to a multitude of factors, including: the more limited and recent role of the EU as an actor protecting fundamental rights in general; the secondary and more limited view of criminal law as an EU competence, into which violence against women was subsumed; and the relatively recent recognition, in law and scholarship, of violence against women as a form of gender-based discrimination.Footnote 101 While the European Parliament had called for more action on the issue, including through the ratification of the Istanbul Convention, the EU was slow to act.Footnote 102 At the same time, the gender-based violence case law of the European Court of Justice prior to ratification had not been particularly gender-sensitive and had failed to rely on the Istanbul Convention as an interpretive tool.Footnote 103
The EU would eventually sign the Istanbul Convention in 2017 and set the process of ratification in motion. As we have seen, this came several years after backlash against the Convention had been afoot in countries in Central and Eastern Europe, and accession was limited to exclusive rather than shared competences.Footnote 104 Its lack of ratification had in fact been a useful rhetorical tool for the Orban Government in Hungary, for instance, employed to shield its own non-ratification from criticism.Footnote 105 Moreover, the EU’s vacillation on which route to take in strengthening its action on violence against women – ratification of the Istanbul Convention or developing its own separate instrument to tackle gender-based violence – further muddled its response.
Neither was the road to ratification smooth and clearly informed by gender-sensitive concerns: the EU vacillated on the legal bases for signing on to the Istanbul Convention, eventually opting for judicial cooperation in criminal matters (Article 82 TFEU), definition of serious transnational crimes (Article 83 TFEU), and asylum and subsidiary and temporary protection (Article 78 TFEU) but, crucially, not non-discrimination as enshrined in Article 19 TFEU. This has rightly been criticised on the grounds that ‘taking gender equality out of the discussion leaves only piecemeal approaches to individual forms of violence or means of combating them without any consistent overall framing of the issue.’Footnote 106 The Opinion of the European Court of Justice on the matter removed Article 83 and added Article 336 TFEU (staff regulations) into the mix.Footnote 107 More relevant here, the Opinion endorsed the exclusion of Article 19 as a legal basis for ratification, embracing Advocate General Hogan’s argument that it was unnecessary and the other provisions sufficed.Footnote 108 In this manner, the requirement of unanimity embedded in Article 19 – which, given member states’ opposition, could not be met – was avoided and the door was left open to proceed with ratification. This move also meant ratification was not grounded in the EU’s own not insignificant gender equality and non-discrimination legal bases.Footnote 109
The legal arguments just discussed may well be persuasive as a matter of EU law. They may also constitute a clever way out of a possible sticky situation with regard to member states possibly blocking the EU’s accession to the Istanbul Convention. However, we cannot fail to note that the snail pace with which the EU moved on the Istanbul Convention from the very beginning was also responsible for the knotty situation it found itself in. Had the Commission heeded any of the numerous calls from the European Parliament to ratify the Convention,Footnote 110 it could have at least set the process in motion before opposition to it became entrenched in the six Central and Eastern European member states resisting ratification at the time of writing.
The story is not entirely bleak. Since ratification, we have seen encouraging developments, such as the European Court of Justice finding that women who have fled their country of origin on account of violence experienced, including in the family, may be regarded as constituting a ‘particular social group’ and may be entitled to refugee status under EU law.Footnote 111 The Court relied on the Istanbul Convention in its reasoning and explicitly declared it irrelevant that Bulgaria had failed to ratify the treaty.Footnote 112 One can only query how much earlier ratification by the EU might have undercut the war on the Istanbul Convention in many of its member states.
A partial parallel might be drawn here to the EU’s failure to ratify the European Convention on Human Rights.Footnote 113 Scholars have criticised the CJEU’s 2014 rejection of accession to the Convention as poorly timed given that it happened when backsliding was already afoot in Hungary and pre-dated that in Poland.Footnote 114 They saw in the European Court of Justice’s Opinion an instantiation of the Court’s (and the EU’s) instrumentalisation of the rule of law: there to ensure primacy of EU law but not as a constitutional norm with which EU institutions themselves must comply.Footnote 115 And for that ‘conceptual appropriation of the rule of law, from constitutional norm to expedient policy tool’, they have argued, the EU carries partial blame for the rule of law’s ‘hollowing out’ in its midst.Footnote 116 The picture regarding the Istanbul Convention is less stark, given that the road to ratification was not closed. Nevertheless, delays and a legal debate that entirely avoided recognising the treaty’s distinctive anti-gender discrimination aims meant that the EU’s normative position on the matter was itself weakened.
Nor has this normative position ever been particularly strong or gender-sensitive in the areas of reproductive rights and family relations. The EU’s track record on equality in family relations is significant, but still underpinned by gendered assumptions about the woman’s role – as mother and primary caregiver – and reticence about dismantling traditional power structures.Footnote 117 As scholars have painstakingly shown, the development of EU law has often reinforced rather than challenged in any way the gendered structure of the market.Footnote 118 The interventions of the European Court of Justice may also be seen as at times exacerbating structural gender inequalities (such as in the area of pensions equality),Footnote 119 and as having moved in a decidedly less progressive direction in the aftermath of the financial crisis.Footnote 120 The Court has always approached gender discrimination through the lens of the economic rationale of the Union, though the effectiveness of its interventions has always depended on remedies and sanctions at the national level, and been slow to take on an intersectional guise.Footnote 121
Thus, not entirely surprisingly, the European Commission’s answer to calls for more action in both areas has been to recall its lack of competence in the areas of health and family law, and deferring to member states on both.Footnote 122 However, this framing of the question – as one of competence only – is not immune from challenge. After all, equality and non-discrimination – and not just the rule of law – are part of the fundamental values enshrined in Article 2 TEU. We have only recently seen the European Commission move to base infringement proceedings on Article 2 grounds, in a procedure against Hungary for its 2021 law supposedly aimed at protecting children from paedophilia, but in reality attacking the rights of the LGBTQI+ community.Footnote 123 Views remain split on whether this course of action will be effective or whether it might have unforeseen consequences, and also on whether such doctrinal innovation is wisely pursued in an area as sensitive as LGBTQI+ rights.Footnote 124
With regard to abortion, it is true that the EU (as well as the European Court of Human Rights as detailed shortly) have pushed for slow and incremental progress, though always falling short of outright reading a right to abortion into their rights protection regimes.Footnote 125 However, the multilevel constitutional architecture of the EU has always been taken as needing to accommodate the disparate approaches among member states, including some with highly restrictive abortion regimes (Poland, Malta and, until 2018, Ireland). It bears remembering that both Poland and Malta attached protocols to their 2004 accession, which explicitly stipulated that integration would not be expected to lead to liberalising their abortion regimes.Footnote 126
The European Parliament has repeatedly and forcefully demanded that the EU do more on reproductive rights, including as recently as April 2024 demanding that abortion rights be enshrined in the Fundamental Rights Charter.Footnote 127 At the same time, a European Citizens’ Initiative titled ‘My Voice, My Choice: For Safe and Accessible Abortion’ was registered by the European Commission.Footnote 128 The Initiative calls on the Commission to submit a proposal for financial support to member states for enabling safe termination of pregnancies for anyone in the EU who lacks access to safe and legal abortion. The initiative is careful to clarify, however, that this would not amount to granting a right to abortion at the EU level.
Only time will tell whether the European Parliament’s calls will eventually be heeded, as well as what the fate of the Initiative will turn out to be. We should not forget, however, that it is itself not a monolith and that the voice of those opposing reproductive rights, and gender equality more generally, has grown increasingly loud.Footnote 129 Whether the European Parliament’s unequivocal stance will survive the 2024 European elections, when far right parties made considerable gains, remains to be seen. Some commentators see the fact that they remain divided across different political groups as a source of weakness, suggesting the EU will be able to continue to muddle through.Footnote 130 However, the common anti-gender stance of these parties, coupled with electoral gains made in several member states and their strong base among young, especially male voters, are all reasons for concern about the direction of travel.Footnote 131 Without forceful interventions by the Commission, therefore, including in hard rather than soft law, it is doubtful that the dial will shift in the area of reproductive rights protection in member states intent on restricting them ever further. The same will no doubt be true for LGBTQI+ rights. In this sense, then, we seem not to have escaped a ‘dialectical tension manifest in the complex interaction between “mobilizing” actors seeking to strengthen the institutions for human rights protection … and “resistant” governmental actors seeking to curb and deter the same’.Footnote 132 Indeed, given its post-2024 elections composition, the European Parliament may itself turn away from its strong gender equality stance.
The European Court of Human Rights’ gender equality doctrine as a work in progress
The European Court of Human Rights is also unlikely to take on the normative mantle on this issue. It is true that it has made significant doctrinal advances on gender equality in recent years, inching closer (though not unidirectionally) towards a substantive conception of equality.Footnote 133 Even aside from these advances, however, structural problems remain. Cases in Strasbourg take a long time to reach the judgment stage, not least because they first require the exhaustion of domestic means. By the Court’s own account, even serious cases typically take no less than three years, with cases seen as less serious taking considerably longer.Footnote 134 Expecting Strasbourg judgments to be an effective and timely roadblock against democratic backsliding is therefore misguided. For example, even while finding in favour of Hungarian and Polish judges who had unlawfully been dismissed or suspended, the European Court of Human Rights’ intervention came years too late to mean these judges could be reinstated in their positions.Footnote 135 And, of course, the Court has itself become the target of authoritarian populist attacks, which have also affected the implementation of its judgments.Footnote 136
Nevertheless, the European Court of Human Rights remains the judicial body tasked with enforcing the ECHR and its anti-discrimination protections and, for all its faults, remains the normative actor par excellence in the area of European human rights law. A look at its case law involving backsliding member states offers a mixed picture, set against the background of attacks against its own political legitimacy.
For example, the Court has been struggling to provide a coherent response to member states’ pushback against ‘gender ideology’ generally, and non-ratification of the Istanbul Convention specifically. To provide only two brief examples, compare the cases of Y and Others v Bulgaria (2022)Footnote 137 and A.E. v Bulgaria (2023).Footnote 138 In the former case, involving the murder of a woman by her abusive husband despite several complaints to the police, the Court found a violation of Article 2 of the ECHR. However, it declined to also find a violation of Article 14 and to attribute the authorities’ failure to protect her to gender-based discrimination. In its judgment, the Court explicitly refused to read into Bulgaria’s non-ratification of the Istanbul Convention evidence of state complacency in combatting violence against women, stating:
[T]he refusal – as can be seen from the reasons for the July 2018 judgment of the Bulgarian Constitutional Court which dealt with the question whether that Convention was compatible with the Bulgarian Constitution[reference omitted] – was based on considerations which the Court finds unrelated to a reluctance to provide women with proper legal protection against domestic violence. It is in any event not for the Court … to pronounce, directly or indirectly, on whether a Contracting State should ratify an international treaty, which is an eminently political decision.Footnote 139
In A.E. v Bulgaria,Footnote 140 another domestic violence case in which a violation of Articles 3 and 14 was found, the Court had a different take on Bulgaria’s rejection of the Istanbul Convention. The Court stated:
while the Court reiterates that its role is not to pronounce on whether a Contracting State should ratify an international treaty, that being an eminently political decision (see Y and Others v. Bulgaria, cited above, § 130), the refusal of the Bulgarian authorities to ratify the Istanbul Convention (see paragraph 54 above) can still be seen as indicative of the level of their commitment to fighting effectively domestic violence.Footnote 141
This careful wording is unsurprising given the European Court of Human Rights’ own struggles in its ‘age of subsidiarity’Footnote 142 and the related constraints (real or imagined) on its ability forcefully to respond to democratic backsliding in its member states.Footnote 143 We can also note the Court’s move in the direction of strengthening its Article 18 case law,Footnote 144 in addition to its judgments reinforcing the rights of unlawfully dismissed judges in Hungary and Poland.Footnote 145
In the case of M.L. v Poland (2023), the Court found Poland in violation of Article 8 (right to respect for private and family life) of the ECHR in a case involving a woman who had been forced to travel abroad to obtain the termination of her pregnancy upon finding out her foetus suffered from a genetic defect. The case was seen as a boost for the newly elected Polish Government, providing it with support for undoing the PiS-era restrictions on abortion.Footnote 146 However, the majority judgment declined to find that the situation before it also amounted to a violation of Article 3 (prohibition of inhuman and degrading treatment). Thus, a seventeen-weeks pregnant woman whose appointment for an abortion due to a foetal defect was cancelled on one day’s notice because of a constitutional court judgment, and who suffered emotional and psychological distress upon having to instead travel abroad for the procedure, was deemed not to reach the threshold of severity of ill-treatment that Strasbourg demands. As the three concurring judges in the case noted, this evaluation failed to take into account the particular vulnerability of the woman, the intensity of her pain and suffering, and the additional burden placed upon her by travel abroad.Footnote 147
The judgment in M.L. is consistent with the Court’s case law on the matter, which, while protecting a right to be informed about abortion services as well as the right to travel abroad to obtain them, has always stopped short of reading a right to abortion into the ECHR.Footnote 148 Instead, Council of Europe member states have been granted a wider margin of appreciation in this area, with the Court relying on its doctrine of European consensus and invoking democratic grounds for finding highly restrictive abortion regimes to nonetheless be compatible with the ECHR.Footnote 149
Conclusion: towards a gendered understanding of the rule of law crisis
This article has called for scholars and policy-makers alike to take seriously the gendered nature of the rule of law crisis and to see attacks on gender equality not as incidental but central to the democratic backsliding projects afoot in Europe. It has primarily focused on Poland and Hungary as exponents of the crisis in Central and Eastern Europe, though it has also identified the anti-gender playbook as a pan-European and even transnational one. Moreover, I have sought to show that the response to the crisis has itself been gendered. In part, this has been due to structural weaknesses, such as delayed and ineffective interventions by the EU and lengthy proceedings and a turn to subsidiarity in Strasbourg. Additionally, however, I have argued that the normative foundations for these interventions are themselves in need of careful re-evaluation. Such an analysis reveals that European institutions are still a long way from becoming the strong gender equality champions the current war on gender needs.
Returning to the rule of law, I find that it too is in need of a gendered reappraisal in light of the European experience with democratic backsliding. As feminist legal scholars have noted, accounts of the rule of law typically operate based on a foundational assumption that the status quo is equal, inclusive and accountable, and therefore worthy of preservation; when that status quo is under threat – as it has been during the rule of law crisis in Europe – calling for its uncritical defence is therefore tantamount to ‘ensur[ing] the preservation of a status quo in which gender is an axis of systematic and substantial oppression’.Footnote 150 The Polish situation since the electoral ousting of PiS is telling in this regard: the Tusk-led coalition Government has so far failed to find a compromise in order to legislate on liberalising access to abortion. A number of Bills on easing access to abortion have so far stalled or failed in the Polish Parliament, with the governing coalition itself deeply divided on the matter.Footnote 151 Polish women’s rights activists now increasingly fear that the most they can hope for is a restoration to the status quo ante by re-inserting the foetal abnormality exception among the grounds for lawful abortion.Footnote 152 Thus, despite taking to the streets in their thousands for years to demand their reproductive rights, the most that Polish women might expect is a return to the abortion regime prior to 2020 – already at the time one of the harshest in Europe. Any framing that prioritises the restoration of the status quo as the answer to the rule of law crisis therefore fails women’s rights.
Also failing the gender equality agenda is the ambivalence towards the Istanbul Convention shown by European institutions. While this may be changing with the ratification of that Convention by the EU and the European Court of Human Rights’ case law increasingly relying on the Istanbul Convention in cases involving gender-based violence, the impact of earlier equivocations lingers. The consequences of this ambivalence may well extend beyond the immediate context discussed here. As Tom Ginsburg has shown, the world’s autocrats have been committed to a sophisticated and so far very effective project of undermining the normative foundations of international law and remaking them in their image.Footnote 153 What is at stake, then, is not just the immediate future of the Istanbul Convention and addressing gender-based violence in Europe, but the integrity and fate of an international order premised on state accountability and universal human rights.
The retrenchment of the traditional family also discussed in this article is probably the line of attack of authoritarian populists that has registered least as connected to the rule of law crisis. This is in part because much of it has happened at the sub-constitutional level, as well as because the family remains seen as quintessentially governed by national (as opposed to EU) authorities. In the EU framework, this translates into family law remaining the purview of member states, with the EU intervening only in cross-border cases. The European Court of Human Rights’ turn to subsidiarity has in turn been exploited by states to push back against its expansive Article 8 jurisprudence, under the mantle of the family being a matter of national sovereignty. Thus, the private sphere remains unchallenged and merely gets elevated to supranational non-interference. With it, so do the unequal gender roles and the patriarchal conception of the family it sustains.
Returning, finally, to legal studies of authoritarian populism and its dismantling of the rule of law through legal means, they also remain incomplete without a gender lens. They risk either ignoring or else underestimating the importance of the anti-gender project to democratic backsliding. The label ‘discriminatory legalism’Footnote 154 has been used to refer to the way in which authoritarian populists have entrenched the friend/enemy distinction in law. But while scholars of populism and constitutionalism have tended to use the label generically to refer to discrimination between us/them, those in/out etc, or else to denote the discrimination that minority groups such as migrants or ethnic minorities have faced in certain societies, we should also be mindful of the gendered nature of the discriminatory legalism at play. This may well have been less visible as a distinctive target of authoritarian populists because gender-based discrimination was already prevalent in all these societies prior to their populist capture. Yet, while there are certainly continuities at play, there is also a specific gendered dimension to the authoritarian populist projects under investigation which merits its own, careful analysis. This article has sought to contribute one small slice of the much wider gendered analysis needed in studies of the rule of law crisis in Europe.
Acknowledgements
With thanks to Irina Muñoz Ibarra for excellent research assistance.
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