Introduction
It is 2025, and, to borrow a famous expression, a spectre is haunting Europe (among other places). As Judith Butler has argued, the ‘phantasm’ of ‘gender ideology’ has become the rallying cry of populists and conservatives opposing the rights of women and LGBTQI+ people the world over. The idea of ‘gender ideology’ is nebulous, underdefined, at times contradictory, and powerful.Footnote 1 Thanks to its hazy boundaries and questionable methodological rigour, this ‘phantasm’ has breathed life into a reactionary ‘crusade’.Footnote 2 It can be argued that this crusade has constitutional implications, as the seemingly never-ending supply of examples suggests. In no particular order, and without any pretense of being exhaustive, one may think of the institution of ‘LGBTQI+-free zones’;Footnote 3 the criminalisation of surrogacy agreements (including when concluded in jurisdictions where they are legal);Footnote 4 the resistance to or backlash against the demands of trans people;Footnote 5 the restriction to the right to terminate one’s pregnancy voluntarily or the opposition to measures intended to curb gender-based violence;Footnote 6 and, at times, laws restricting the rights of migrants.Footnote 7
These developments – which are taking place in Europe, too – have not gone unnoticed by political scientists, human rights lawyers, and philosophers.Footnote 8 Constitutional lawyers have also offered their insights, as the gender backlash and constitutional degradation appear to be correlated.Footnote 9 Nevertheless, the connection between populism, constitutional degradation, and the infringements on the rights of women and LGBTQI+ people may benefit from further research. We suggest that the relationship between the erosion of values central to constitutional liberalism and anti-gender ideology has yet to be fully appreciated in its profound – even symbiotic – dimension.Footnote 10
The articles in this Special Section of the European Constitutional Law Review contribute to filling this gap. They address several questions that, we suggest, are crucial not only to understanding equality law and fundamental rights – important as this endeavour may be – but also to appreciating significant aspects of contemporary constitutionalism.
Overview of the Special Section
How are the rights of women and LGBTQI+ people restricted or reframed within the populist-driven constitutional degradation? How does the ethno-nationalist rhetoric associated with anti-gender legal discourses affect the constitutional liberal order? How is this ‘gender backlash’ changing notions of equal citizenship and human rights? How is the rule of law affected by this backlash? How has constitutional law been mobilised during this anti-liberal project? How is the ongoing backlash changing the relationship between science and constitutional law?
We have structured the Special Section in two parts to answer these questions. The first three articles, written by Mara Malagodi and Elettra Stradella, Ruth Rubio-Marín, and Silvia Suteu, respectively, sketch the conceptual relation between constitutional degradation and the populist-driven backlash against the rights of women and LGBTQI+ people. These conceptual analyses should ideally be read first, as they set the theoretical background of the enquiry.
Mara Malagodi and Elettra Stradella examine these issues by elaborating on the connection between gender populism and constitutional degradation and by highlighting their symbiotic relationship. Malagodi and Stradella discuss how gender populism serves as both a tool and a justification for undermining the liberal constitutional order in Europe. They investigate how gender populism is not merely a rhetorical device but a fundamental ideological and strategic component of populist governance. Malagodi and Stradella draw our attention to what they understand as the dual approach of gender populism. The corruption of the values and structures of the liberal constitutional order is instrumental in eroding the rights of women, LGBTQI+ people, and diasporic communities. At the same time, the assault on gender rights provides right-wing populists with the tools and justification to undermine the liberal constitutional order.
Ruth Rubio-Marín explores the various constitutional strategies that have provided instruments to wage ‘lawfare’ against the rights of women and sexual minorities in Europe. Rubio-Marín identifies several approaches adopted by the global anti-gender movement to infringe on the equality of women and LGBTQI+ people. She discerns three strategies: the first is ‘regressive constitutional erosion’, which corrodes the rights of women and sexual minorities through litigation and constitutional interpretation; the second is ‘regressive constitutional reform’, which involves the use of constitutional amendments; and, finally, ‘constitutional preemption’ mobilises the hierarchy of norms and makes the traditional heterosexual family a matter of constitutional supremacy and national identity.
Silvia Suteu’s article examines the crisis of the rule of law in Europe, particularly in its central and eastern regions. Suteu focuses on the connection between anti-gender rhetoric and populism. She identifies the main elements of the ‘anti-gender playbook’ and argues that this playbook shares significant characteristics with the strategies commonly employed to undermine the rule of law. At the same time, the anti-gender playbook, Suteu contends, deserves independent attention from constitutional lawyers for two reasons. First, the attack on the rule of law in the EU has a core anti-gender component, which has not been fully acknowledged and, as a consequence, has not received sufficient attention in institutional responses. Second, the anti-gender playbook will have long-term and far-reaching effects, altering the constitutional landscapes of Central and Eastern European countries and, thus, of the EU.
Simone Penasa and Veronica Federico, respectively, author two articles examining specific instances of the relationship between anti-gender strategies and constitutional degradation.
Simone Penasa observes that a distinct manifestation of populism can be discerned in relation to public health policies and examines whether such a manifestation may influence gender-related rights. Penasa argues that the reliance on scientific expertise and knowledge within political and legal discourses can become a tool for advancing a populist agenda in health policies. Simultaneously, Penasa contends that scientific discourses can serve, so to speak, as a vaccine against populist discourses when the relationship between law and science is understood within an appropriate constitutional framework.
Veronica Federico focuses on an issue that has been central to populist policies: migration. Federico argues that right-wing populist parties have mobilised discourses around migration to repackage their position on gender issues. The violation of the rights of women in non-European societies – especially in countries whose population is predominantly Muslim – has been portrayed as a threat to European societies and thus used to legitimate restrictions on migration. Federico highlights the inherent paradoxes of those narratives and, at the same time, the ability of populist radical right parties to become agenda-setters in policy and law-making processes regarding migration.
Scholarly contribution
The Special Section, we believe, enhances the literature on constitutional degradation and populism in three ways. First, it adds a new gender perspective to constitutional law scholarship. Populism and democratic backsliding have already been researched, and constitutional scholars have examined their impact within the public sphere. However, as Rubio-Marín has argued, the gender order, which is structured around the separate spheres doctrine, is a crucial component of constitutionalism. The public and the private spheres, Rubio-Marín has shown, cannot be severed from one another. More research on the constitutional implications of the backlash against the rights that relate to the private sphere is still needed. Surely, as mentioned, scholars have already examined some of the gendered implications of the ongoing crisis of liberal constitutionalism.Footnote 11 Furthermore, it has been argued that nationalism is gendered.Footnote 12 Research has also been carried out on how traditional and conservative values are transposed in constitutional reasoning.Footnote 13 Nevertheless, the connection between constitutional degradation and the populist-driven attack against the rights of women and LGBTQI+ persons may still benefit from a systematic scholarly addition, in particular to explain how this backlash is an essential, and not just accidental, part of the ongoing crisis of constitutional liberalism.
Second, the Special Section relates to the comparative politics literature on gender and populism, bringing novel insights from a constitutional law standpoint.Footnote 14 For example, Nancy Bermeo has defined ‘backlash’ as the state-led debilitation or elimination of state institutions that sustain an existing democracy, taking gender equality as the benchmark to study the phenomenon.Footnote 15 Backsliding, she argues, can result in a gender policy decay: a ‘dismantling by default’Footnote 16 or an erosion of consultation mechanisms.Footnote 17 It has also been argued that right-wing populism may refer to heteronormative values, considering traditional family gender roles to be the ground of modern societies.Footnote 18 Populist rhetoric may also be characterised by tones that are reminiscent of hegemonic masculinityFootnote 19 and by references to violence as a symbol of power.Footnote 20 In brief, a gender perspective is crucial to study democratic backsliding and establish a diagnostic framework for identifying the gendered patterns thereof.Footnote 21
Third, the Special Section is characterised by a sustained multidisciplinary effort. The authors combine doctrinal legal research with socio-legal studies, political theory, and gender and sexuality studies to offer new frames of analysis for a topical theme. This multidisciplinary approach adds value to the existing comparative constitutional law literature in the field.
On the history of the Special Section. A few conclusive remarks
This Special Section was conceived during the Workshop ‘Gender and Populism in Europe and Beyond’, which was co-organised by the authors of this introduction together with other colleagues at the University of Pisa, within the context of the Jean Monnet Chair European Women’s Law and Gender (EUWONDER), led by Elettra Stradella.Footnote 22 This event took place on 12–13 October 2023. Scholars from several European countries and at all career stages participated in it. This event was made possible thanks to the generosity of the European Commission, to which we are grateful. We could not conclude without a wish: we hope many will engage with, challenge, question, and discuss what this Special Section proposes, not because we are seeking agreement, but because we believe that gender and sexuality belong in public and constitutional law, not just as a ‘nice addition’, but as an integral component of it.
Funding
This Special Section has been designed within the framework of the Jean Monnet Chair EUWONDER. The EUWONDER Jean Monnet Chair is held by Elettra Stradella, funded under the Erasmus + Programme. The European Women’s Law and Gender action (EUWONDER, https://euwonder.jus.unipi.it/) addresses the topic of gender equality within the European legal order. It identifies relevant principles, regulations, and good practices; analyses their impact on both the EU and member states in the fields of political representation, gender violence and reproductive rights, welfare and markets; it discusses the perspectives of the integration of gender analysis at all levels of policies and regulation, with a commitment to equality and anti-discrimination, trying to promote intersectionality as a cross-cutting vision in European law and policies.
Open access
