parity, power and representative politics: the elusive pursuit of gender equality in europe

MERCEDES MATEO DIAZ and SUSAN MILLNS

PARITY, POWER AND REPRESENTATIVE POLITICS: THE

ELUSIVE PURSUIT OF GENDER EQUALITY IN EUROPE

ABSTRACT. In recent years the concept of parity democracy has rapidly risen upthe European political agenda. Using a threefold typology of sex-quotas, this article

undertakes a classification of the measures taken by the 15 old E.U. member states toimprove the gender balance in representative assemblies. This is then used as thebasis for an exploration of the advantages and disadvantages of the parity approach

as a tool to promote gender equality, including the constitutional obstacles whichstand in its way. The article goes on to present a comparative study of severalnational systems in which attempts to achieve parity democracy have been pursued,concluding that, in order to maximise their effectiveness, parity measures must

operate within a system of unbiased political structures and be properly adjusted tosuit the particularities of individual national electoral regimes.

KEYWORDS: constitutional law, electoral systems, gender balance, parity, quotas,representation

INTRODUCTION

Following heightened sensitivity to the embarrassingly low numbersof female representatives in elected public office, a number of Euro-pean countries have recently introduced measures designed to pro-mote the candidacy and participation of women. Both legal andextra-legal devices to ameliorate the gender balance of representativebodies have been proposed ranging from unenforceable (partypolitical) affirmative action programmes to legislative quotas inelectoral laws and in some cases a full-blown constitutionalisation ofthe parity principle. The purpose of this article is to examine theemergence of parity democracy in Europe and to do so from acomparative perspective, demonstrating the continuing difficultieswhich women encounter in accessing legislative decision-makingpower and the elusiveness of gender equality goals in the politicalarena.

Outlining the problem of gender-related inequality in the politicalsphere, the article begins with an historical contextualisation of the

Feminist Legal Studies 12: 279–302, 2004.� 2004 Kluwer Academic Publishers. Printed in the Netherlands.

structural disadvantage facing women entering public office, givingan overview of the different stages at which women achieved the rightto vote and to stand for election in the 15 old member states of theEuropean Union, together with the correlative present gender com-position of the national assemblies of these countries. Havingestablished the facts of gender inequality in political life, the articlethen explores the emergence of the idea of parity democracy as onemechanism for promoting this goal. Using a threefold typology ofsex-quotas developed by the authors (following previous typologieselaborated by Lovenduski (1993), Reilly (1997) and I.D.E.A.1), thearticle undertakes a classification of the measures taken by the 15 oldmember states of the European Union in furtherance of achieving animproved gender balance in representative assemblies. This classifi-cation is then used as a basis from which to explore the advantagesand disadvantages of the parity approach viewed alongside othergender equality and quota initiatives, including the constitutionalobstacles which arise as a consequence of using the concept of parityas a tool to promote gender equality.

The final part of the article presents a comparative study of severalnational systems – the Spanish, U.K., Portuguese, Italian, Frenchand Belgian – in which attempts to adopt legal measures to achieveparity democracy have been pursued. Whereas legal provisions havebeen successfully adopted in some cases, they have been compre-hensively rejected in others or have had only limited impact whentranslated into practice. Thus, the cases of Portugal (1997), France(1999), Belgium (2002) and Italy (2003) are highlighted for theirconstitutional amendments to introduce the parity principle at thesummit of the hierarchy of legal norms and – for Italy and France –in the face of prior substantial constitutional objections. That ofSpain illustrates a failure to embed the parity principle in the coun-try’s constitutional order at the regional level following an inter-vention of the Spanish Constitutional Court. The example of theU.K. is discussed as an illustration of legislative reform (The SexDiscrimination (Election Candidates) Act, 2002) introduced within asystem of unwritten constitutional arrangements and enabling thelawful adoption of party political selection mechanisms to reduce

1 International Institute for Democracy and Electoral Assistance (I.D.E.A.)Global Database of Quotas for Women (http://www.quotaproject.org/system.cfm).

MERCEDES MATEO DIAZ AND SUSAN MILLNS280

inequality in the numbers of men and women selected as candidates.2

Exploring each of the different national strategies, the article inves-tigates the important interaction between legal reforms and legislativeelectoral systems, the indirect effects of quotas and their relationshipto institutional change. It concludes that legislative and constitutionalreforms providing for output-oriented, de facto as opposed to de jure,political equality are sensitive instruments to be used with caution inthe promotion of gender balance in national assemblies. Repeatedlycoming up against legal and constitutional obstacles, their impact isof marginal significance where they remain overly dependent onexisting institutional factors (such as the electoral system or partystructures) resulting in a negligible real effect on patterns of repre-sentation.

GENDER EQUALITY IN PUBLIC LIFE: THE NEED FOR CORRECTIVES

Undoubtedly over the past 30 years women’s rights have become acentral matter of concern to the international community. Questionsof non-discrimination, quotas, parity and gender mainstreaming aresignificantly present on the political agenda of the European Unionand on that of a number of member states (Barnard 1999; Beveridgeet al. 2000; Pollack and Hafner-Burton, 2000; Beveridge and Shaw2002). Together with progressive extensions in the provision of for-mal rights in the sphere of gender equality (such as equal pay andequal treatment) changes in public policies and instruments toachieve de facto equality have begun to be promoted.

These changes have been introduced against a background inwhich gender-related inequalities in terms of the political votingrights of men and women and the right to stand for election speakfor themselves. Table 1 sets out the dates at which womenachieved the right to vote in the 15 old member states of theEuropean Union. These figures are then set alongside data dem-onstrating the current gender imbalance of parliamentary assem-blies in Europe. The figures indicate a substantial (albeit notuniform) degree of correlation between the date at which women

2 This legislative measure was adopted in response to the decision of an industrialtribunal in 1996 that the Labour Party’s policy to create all women shortlists for

certain parliamentary seats was contrary to the Sex Discrimination Act 1975 in so faras it discriminated against men: Jepson and Dyas-Elliott v. The Labour Party [1996]I.R.L.R. 116 (see further below).

PARITY, POWER AND REPRESENTATIVE POLITICS 281

Table

1Theyearin

whichwomen

weregrantedboth

therightto

vote

andto

standforelection,andcurrentproportionsoffemalerepresentatives

intheParliaments

ofthe15old

E.U

.Mem

ber

Statesa

Rightto

vote

Rightto

stand

forelection

PresentPercentage

ofFem

ale

MPs

ElectoralSystem

b

1906

Finland

Sweden

45.3

ListP.R

.

1915

Denmark

Denmark

38

ListP.R

.

1917

Netherlands(tostandforelection)

Finland

37.5

ListP.R

.

1918

Austria,Germany,Ireland*,United

Kingdom*

Netherlands

36.7

ListP.R

.

1919

Belgium

(tovote)*,Luxem

bourg,Netherlands

(tovote),Sweden*

Spain

36

ListPR

1921

Belgium

(tostandforelection)*,Sweden

**

Belgium

35.3

ListP.R

.

1928

Ireland**,United

Kingdom

**

Austria

33.9

ListP.R

.

1931

Portugal*,Spain

Germany

32.2

M.M

.P.–P.R

.

1934

Portugal*

Portugal

19.1

ListP.R

.

1944

France

United

Kingdom

17.9

Plurality

system

1945

Italy

Luxem

bourg

16.7

F.P.T.P.–Plurality

1948

Belgium

**

Greece

14

ListP.R

.

1952

Greece

Ireland

13.3

S.T.V.–P.R

1976

Portugal**

France

12.2

T.R

.S.–Majority

Italy

11.5

MMP–PR


*Rightsubject

toconditionsorrestrictions.

**Restrictionsorconditionslifted.

aData

from

theInter-Parliamentary

UnionWomen’sSuffrage.

AWorldChronologyoftheRecognitionofWomen’sRights

toVote

andto

StandforElection(http://w

ww.ipu.org/w

mn-e/suffrage.htm

).Thedata

ontheproportionoffemale

representatives

hasbeencompiled

by

theInter-Parliamentary

Uniononthebasisofinform

ationprovided

byNationalParliaments

asof27May2004(http://w

ww.ipu.org/

wmn-e/classif.htm

).bI.D.E.A

.HandbookofElectoralSystem

Design(http://w

ww.int-idea.se/publications/esd/english/esd_english_part2.pdf).

Note:F.P.T.P.=

First

Past

thePost,

ListP.R

.=

ListProportionalRepresentation,

M.M

.P.=

Mixed

Mem

ber

Proportional,

P.R

.=

ProportionalRepresentation,

S.T.V.=

Single

Transferable

Vote,

T.R

.S.=

TwoRoundSystem

.


received the franchise and the number of women members ofparliament in a particular country with earlier dates of femalefranchise corresponding with a present day higher degree of femaleparticipation in the legislative assemblies. This picture suggestsabove all else that the correction of gender imbalances in politicaland institutional decision-making is a long-term process with noquick fix solutions.

Thus, despite the general commitment to formal equal rights forwomen, there has as yet not been a substantial corrective to thegender imbalance evident in the national assemblies of westernEurope. In this respect, formal legal equality, the right to vote andto stand in elections, has proved incapable of radically alteringwomen’s position and representation in the public sphere. Themere granting of equal rights is a demonstrably insufficient way ofredressing the historic prejudice facing women in public life inparticular the institutional nature of sexism. As a result, legalcontroversy continues over the best way to correct materiallyexisting inequalities and to prevent others from developing. Atissue is the extent to which governments should promote political,social and economic equality, through policies of redistributionand positive actions, in order to reach de facto equality. In thisregard even policies aimed at giving ‘equal opportunities’ to citi-zens may simply be not enough. Equal opportunities, like equalrights, can result in very unequal outputs, given that the startingpoint – in terms of capabilities, training, information, and otherrandom factors – is not uniform. One corrective in this case hasbeen to insist not only on input in the assessment of the system’sequality capacities but also on output. For instance, within its TitleIII on equality, the E.U.’s Charter of Fundamental Rights3 whichis set to form a key part of a new Constitution for the EuropeanUnion4 provides a full menu of equality provisions couched interms of basic rights which include the non-discrimination principle(Article 21), and the principle of equality between men and women(Article 23). The latter even envisages the possibility of positiveaction in order to redress gender inequality, stating that

Equality between men and women must be ensured in all areas, including employ-

ment, work and pay. The principle of equality shall not prevent the maintenance or

3 O.J. 2000 C364/1.4 Draft Constitutional Treaty, O.J. 2003 C169/1.


adoption of measures providing for specific advantages in favour of the under-represented sex.

In other words, not only is everyone to be equal, but positive dis-crimination measures are countenanced at the E.U. level when a lackof representation of one of the two groups is observed, that is, whenthe material output does not concur with equality objectives intendedby legislation.

This is a laudable objective and translated to the level of nationalassemblies, it would suggest that firm steps need to be taken toaddress the gendered democratic deficit which continues to hauntnational political regimes and their decision-making bodies. Respectfor diversity and difference in terms of promoting active and balancedparticipation in public life goes to the heart of what is meant bydemocratic decision-making processes and a number of politicalarguments can be marshalled in support of the search for correctiveswhich go beyond the premise that women should enjoy the formallegal right to participate. Notably such arguments are based upon theutility factor associated with women’s participation in the legislativeassemblies, that is the view that women’s engagement in politicalprocesses will confer positive benefits in terms of a diversification ofthe res publica, a renewal of political culture and a change in sub-stantive legislative output. These two approaches – based on rightsand utility – are not necessarily mutually exclusive. Instead they arefrequently combined, with arguments based on right being assumedwhenever utility arguments are advanced.

CORRECTIVE MECHANISMS: FROM QUOTAS TO PARITY

A number of different correctives have been suggested to redressunequal patterns of women’s representation in legislative assembliesand, as will be seen below, there have been a range of attempts toclassify the large variety of forms that such mechanisms have takenaround the world with the type of measure adopted reflecting dif-ferent cultural values and beliefs (Norris 1997). Here we considerthree alternative typologies and offer a fourth original model of ourown designed to reflect more recent European constitutional andlegislative developments on the matter.

First, Joni Lovenduski (1993) has established a threefold cate-gorisation of different types of corrective measures comprising rhe-torical strategies, affirmative action programmes and positive


discrimination strategies. Rhetorical strategies ‘‘aim to change theparty ethos by affirming the need for social balance in the slate ofcandidates’’. Affirmative action programmes ‘‘aim to encourageapplicants by providing training sessions, advisory group targets,financial assistance, as well as systematically monitoring the outcome.[. . .]’’ Gender quotas fall into this category if they are advisory ratherthan binding. Finally, positive discrimination strategies advocate‘‘mandatory group quotas for the selection of candidates from certainsocial or political groups. (. . .)’’ The strongest version would be legalmeasures specifying in the Constitution that a high proportion of allparliamentary seats should be reserved for women (Lovenduski andNorris 1993; citations from Norris 1997).

Empirically, in terms of efficiency assessment, it is interesting toconcentrate on Lovenduski’s second and third categories. The reasonis that they both have a factual character whereas rhetorical strategiesremain at the level of discourse and therefore it is difficult to measuretheir effectiveness in concrete terms. More specifically, for presentpurposes, sex-quotas and parity measures can either take the form ofaffirmative action programmes, which are non-binding recommen-dations, or positive discrimination strategies, which are binding. Yet,even though both measures put limits on how low a certain group’sdescriptive representation is allowed to be, the philosophical foun-dations of the notions of quotas and parity differ somewhat.

Basically, positive action in the form of ‘quotas’ is presented byphilosophers and politicians as a temporary measure of correction.The objective is to accelerate the process leading to a balancedpolitical sharing between men and women. The use of quotas is basedon the belief that a balance of the sexes cannot be reached naturally,that is, by simply letting the evolution of society change patterns ofbehaviour. Iris Marion Young, for example, claims that the univer-salism which is behind liberal democracy is false and ignores factualdiscrimination (1997, 1998). Therefore, she stresses the need forartificial mechanisms such as quotas. Formally, quotas consist inestablishing a compositional threshold that can be defined eitherpositively (the minimum required of minority members) or negatively(the actual majority cannot be more than a maximum). Conceptually,quotas are based on the idea that representation is about standing forgroup interests. It assumes that the representative shares socialcharacteristics (for example, gender, race, locality, class) with thoserepresented and that this commonality will result in similar policypreferences.


Ben Reilly has created a threefold classification of the differentmethods implemented around the world under the general appella-tion of quotas (Reilly, quoted in Dahlerup 1998, pp. 96–97). First,‘‘statutory quotas’’ require a minimum proportion of womenamongst the elected representatives (as used, for example, inArgentina). ‘‘Quotas in the electoral law’’ constitute the secondmethod and designate a system in which the lists of political partiesmust contain a certain threshold of women candidates (used forexample in Belgium). Finally, ‘‘informal quotas’’ can be implementedby individual parties. This method has been applied, by and large, inScandinavia. Statutory quotas and quotas in the electoral law belongto what Lovenduski calls positive discrimination strategies (that is,mandatory mechanisms), whereas informal quotas belong to affir-mative action programmes (that is, non-binding strategies).

The International Institute for Democracy and Electoral Assis-tance (I.D.E.A.) has also proposed a threefold classification ofsex-quotas. This includes a constitutional quota for the nationalparliament, in which the quota is clearly stipulated in the constitu-tional text; an election law quota or regulation for the nationalparliament where the quota is included as a part of the electorallegislation and, finally a political party quota for electoral candidatesin which the parties internally decide to set up a quota to be appliedin the electoral lists of candidates presented by the party.5

The typologies established by Lovenduski, Reilly and I.D.E.A. allhave some common and overlapping aspects. Table 2 below helps ingiving a clear idea of how these three classifications interrelate. Inaddition, we would suggest that the time has come for a more fine-grained legal typology for reform mechanisms to be applied in orderto reflect more accurately the multiplicity of constitutional and leg-islative options. The fourth column in Table 2 displays our propo-sition.

Along the rows one can see the correspondence between thefour categorisations. Leaving aside minor changes in the labellingof some of the categories, the major contribution of the MateoDiaz – Millns classification is its insistence on a distinction

5 Supra n. 1. I.D.E.A. also suggest adding a fourth category to the previous listwhich is a version of the ‘constitutional quota for the national parliament’ butoperates at the sub-national level: the so-called ‘constitutional or legislative quota for

sub-national government’. I.D.E.A. state that among the E.U. member states Franceand Greece are the only ones to have applied this kind of quota. See the GlobalDatabase of Quotas for Women at http://www.idea.int/quota/system.cfm.


Table

2Typologiesofsex-quota

system

s

Lovenduski

Reilly

I.D.E.A

.Mateo-D

iazandMillns

Rhetoricalstrategies

Affirm

ativeactionprogrammes

Inform

alquotas

Politicalpartyquota

for

electoralcandidates

Internalpoliticalpartyquotasfor

electoralcandidates

Positivediscrim

inationstrategies

Constitutionalquota

for

nationalparliament

Constitutionalisation

of

parity

principle

Quotasin

theelectorallaw

Electionlaw

quota

or

regulationfornational

parliament

Statutory

quotas

–enabling

quotas

for

political

parties

–requiring

quotas

for

electoral

candidates

–enablingquotasforthecompo-

sitionofparliament

–requiringquotasforthecompo-

sitionofparliament


between constitutional parity measures and legislative mechanismssetting out quotas and within the latter category the distinctionbetween four groups, namely those laws designed merely to enablequotas for political parties, those requiring quotas for electoralcandidates, and those designed either to facilitate or require quotasfor the composition of parliament. The first category of legislationenabling quotas corresponds to the British case in which theimplementation of quotas is merely facilitated through legislationbeing only recommended and not binding, thus providing a rather�soft’ version of the quota system. Legislation requiring quotas forelectoral candidates is a second category that comprises legislationin which there is a formally binding requirement for the sexcomposition of candidates presented in the parties’ lists. The thirdand final type, legislation enabling or requiring quotas for thecomposition of parliament, refers to laws in which there is apermissive or formal requirement for the effective distribution ofthe parliamentary seats.

Using our new typology, Table 3, classifies the 15 old memberstates of the European Union into the different categories.

Despite their temporary appeal, the philosophy underlying quotasin terms of facilitating positive discrimination measures, means thatthey may conflict with the essence of some political regimes. Thisproblem motivated the development of the parity concept. From adistance, the two notions seem somewhat similar, that is, they denotemeasures of correction in order to reach a political balance betweenmen and women. But they are not synonymous. ‘Parity’ is claimed tobe a definitive measure that goes beyond the quantitative aspects ofgender inequality, and thus is based upon quite different underpin-nings. According to the parity philosophy, it is the very duality ofhumankind that justifies a sharing of power between men and wo-men. This is why it is necessary to break away from the logic ofassimilation, and replace it with the construction of autonomousindividuals, each with the capacity for self-determination. Supposingthe end of the current paradigm of dependence which generatespeople whose wills are determined by something/someone external tothem, the objective of parity is to transcend the Kantian notion ofheteronomy (implying the external imposition of laws) and toempower independent actors to pursue their autonomous will anddecision-making capacities.

Yet, even if the defenders of parity stress the differences betweenquotas and parity both on a temporal and philosophical level, there


has proved to be little difference when it comes to implementation.This will be discussed in the final section of the article which sets outvarious national attempts to secure greater female participationthrough the implementation of quotas, the parity principle or acombination of both.

Table 3Classification of old E.U. member states according to the sex-quota implementeda

Quota type Country

Internal political partyquotas for electoralcandidates

Austria, Belgium, France,Germany, Greece, Ireland,Italy, Luxembourg, Nether-

lands, Portugal, Spain, Swe-den, UK [Denmarkb]

Constitutionalisation ofparity principle

Belgium, France, Italy, Portu-galc

Legislation Enabling quotas for

political parties

UK

Requiring quotas for

electoral candidates

Belgium, France

Enabling quotas for

the composition of

parliament

Finlandd

Requiring quotasfor the composition

of parliament

a Some of the information reproduced in this table has been extracted from theGlobal Database of Quotas for Women (http://www.idea.int/quota/system.cfm). Therest has been updated by the authors.b In Denmark the Socialist People’s Party (S.F.) and Social Democratic Party (S.D.)introduced quotas during the 1970s-80s and subsequently abandoned them in 1996.See http://www.idea.int/quota/displayCountry.cfm?CountryCode=DK.c In 1997, the principle providing for the State’s active role in promoting equality ofparticipation of men and women into politics, together with equality of access toelective and public mandates was incorporated into the Portuguese Constitution.d In Finland there is no quota regulation at the party level. Since 1987 the Act onEquality between Women and Men – amended in 1995 – stipulates that the presenceof women and men should be as equal as possible in all decision-making bodies.Through the 1995 amendment the quantity was specified and rose to a minimum of

40% of one sex. See further, Council of Europe ‘‘Women and Politics Database’’ athttp://www.db-decision.de/CoRe/Finland.htm.


COMPARING APPROACHES TO PARITY DEMOCRACY

The legal and political obstacles with regard to both quotas and parityare difficult to surmount and have tended to take the formof a battle ontwo fronts leading to two distinct impasses. First, as mentioned above,the idea behind quotas contradicts the very essence of some politicalsystems. Hence, in countries where parliament has tried to enact leg-islation providing for positive action to promote parity democracy,these attempts have been rejected as unlawful since their underlyingethos runs contrary to the Constitution. As the French and Italianexamples illustrate, legislators have then changed strategy and decidedto modify first the Constitution in order to anticipate any furtherrejection by the constitutional adjudicators, ensuring that positive ac-tions can now be drawn from a constitutional principle.

Yet, even once parity is accepted as a constitutional principle,concrete mechanisms must follow: second impasse. Introducing leg-islation which provides for output-oriented, that is de facto, politicalequality, has always been highly controversial. In the light of lengthypolicy processes in those countries where this kind of legislation hasbeen discussed, even gaining a parliamentary majority for a law onquotas has proven to involve a mighty struggle despite the adoptionof constitutional enabling measures.

Despite these key difficulties, since its approval in France in 2000,and despite a proven deficiency in actually gettingmorewomen into theAssemblee nationale,6 parity – as a constitutional mechanism toachieve a better sex balance in elected offices – seems to have found a‘fan club’ in other E.U. Member States, such as Belgium, Italy, andSpain where various attempts to follow suit have been made. Thus,following the French example, the principle of parity has now enteredtheConstitution in Belgium (2002) and Italy (2003).However, togetherwith the statement of constitutional principle – which is of courseimportant as a first, and not only symbolic step – some regulatory, orlegally binding measures are still required as a second stage ofthe operation. Thus, the efficiency of the parity principle in reaching thegoal for which it was designed depends on (1) the transposition of theprinciple into electoral law, meaning that parity necessarily requiresthe creation of a quota in practical terms; and (2) the adequacy of the

6 The percentage of female deputes in France rose from 10.9% in 1997 to only12.3% in 2002.


adopted mechanism to take hold within the existing political andinstitutional reality governing the election of representative assemblies.

Partial Attempts at Parity: Spain, the U.K., Portugal and Italy

Starting with the least successful attempt in Spain, the introduction ofa sex-based quota in the electoral system has been discussed, but hasfailed to yield any visible result in terms of legislation at the nationallevel. Two laws on parity were, however, enacted by the regionalassemblies in Castilla-La Mancha (27 June 2002) and Baleares (18June 2002). These laws provided that lists of electoral candidatesshould carry an equal number of male and female candidates and thattheir names should be ‘zipped’ (man–woman–man–woman, etc.) toensure that they were equally distributed across the list. Subse-quently, the Cabinet of Ministers requested a ruling from the Con-stitutional Court (27 September 2002) on the constitutionality of themeasures7 and the laws were suspended by the Court on 17 October2002, until a decision on whether or not they are in accordance withSpanish constitutional law is reached.

In both cases, the new legislation was opposed by the PopularParty which argued that parity should not be achieved by means of alaw but rather through the political will of the parties. They alsoopposed the law saying that it violated constitutional provisionswhich give exclusive competence to the central state to guaranteeequality amongst citizens when it comes to the exercise of their rights,the guarantee of civil liberties, and matters of electoral law and accessto public mandates. Furthermore, to put things in context, it ishelpful to bear in mind that, during this period, the Spanish gov-ernment and the national parliamentary majority were in the handsof the Popular Party, while the Socialist party held the majority in thetwo regions in which the laws on parity were voted. The delay createdby the Constitutional Court’s deliberation meant that the law onparity was not effective for the regional elections held on 25 May2003. The law is still being considered by the Constitutional Court.After the 2004 general elections, the new government expressed itsdetermination to reform the electoral law in order to achieve parity inall the lists of candidates presented by parties in successive elections.It remains to be seen whether this declaration of intent will

7 The Government invoked Article 161.2 of the Constitution, which provides for afull suspension of the regional law for at least five months whenever this is challengedby the government.


materialise into legislative action and if and how the statement ofprinciple will translate into effective mechanisms.

A further example can be drawn from the United Kingdomwhich despite a lack of written Constitution, has also seen nonetoo successful attempts to introduce mechanisms to promote abetter sex balance in the House of Commons. Thus, in the case ofJepson8 an industrial tribunal found in favour of two men whohad not been placed upon short lists of candidates by the LabourParty (pursuing its policy of all women short lists for certainparliamentary seats) and who argued that they had suffered sexdiscrimination as a result. The practice it was found contravenedsection 13 of the Sex Discrimination Act 1975 and Article 3 of theE.E.C. Equal Treatment Directive 76/207 (now amended byDirective 2002/73) in that it introduced a form of discriminatorytreatment against male candidates. Interesting from our compara-tive constitutional perspective is the fact that in the U.K. legalregime the issue lost its very constitutional significance becoming aroutine matter of employment law with no consideration beinggiven to the wider public law or political context. Fortunately, inan effort to side-step the constraints of the Sex Discrimination Actin failing to permit positive action, the Labour government haspursued its policy to increase the number of women in parliamentby other means. This has resulted in the adoption of the SexDiscrimination (Election Candidates) Act 2002, amending the SexDiscrimination Act 1975 so that it no longer applies to measuresadopted by a political party to reduce inequality in the numbers ofmen and women selected as candidates. This ‘soft’ approach toquotas is far from a fully-fledged commitment to parity democracyand operates within an unaltered electoral system that has beendemonstrated to be resistant to realising higher levels of femalerepresentation. It is nevertheless a small and optional step towardsthe promotion of female candidates and has to be viewed as suchwithin the context of the U.K.’s flexible unwritten constitutionalarrangements which endorse no positive commitment to equalrights or gender equality.

Portugal also provides an interesting example in so far as theprinciple providing for the State’s active role in promoting equality ofparticipation of men and women into politics, together with equalityof access to elective and public mandates, was incorporated into the

8 Jepson and Dyas-Elliott v. The Labour Party [1996] I.R.L.R. 116.


Constitution in 1997.9 However, so far no effective implementationmechanisms have followed. The legislative proposals that have beenmade have never gained a parliamentary majority, not even amongthe female members of parliament (who presently represent 19.13%).

Moving up the scale in terms of success and following the Frenchexample, a further instance of the full constitutionalisation of theparity principle has been attempted in Italy – a county with anabsolutely dire level of female participation in its lower assembly, theCamera di Deputati (currently comprising 11.5% women). Again theissue had a long history of constitutional objection. Two differentreforms were adopted in Italy during 1993 for the elections to thelower house. In March a first reform established that in the lists ofcandidates the number of candidates from one sex could not be abovetwo thirds.10 The second reform adopted in August, modified theelection rule, and converted it into a mixed system in which 75% ofthe seats (475) were assigned by simple majority vote, and theremaining 25% (155 seats) were assigned through proportional rep-resentation and party-list system. For the latter 25%, Article 4-2provided for the alternation of male and female candidates in the listspresented by the parties, which also implied a strict parity (50–50) inthe numerical composition of the lists.

Subsequently, as in the Spanish case, the idea of quotas for thearrangements of the lists of candidates was referred to the Cortecostituzionale which held the measures to be unconstitutional.11 Thelaw establishing a 50–50 quota for the elections by P.R., together withthe zipper system of male and female candidates, was applied onlyonce in the 1994 elections. Comparing the results for female candi-dates in 1992, without any measure (8.1%), with those of 1994 whenthe quota was applied (15.1%), and finally with those in 1996 and2001 without it (11.1% and 11.5% respectively), the significantrecession in the second and third electoral terms speaks for itself.

9 See Article 109 on the equality of participation of men and women into politics,and the equality of access to elective and public mandates; and Article 9 h) setting

out the State’s commitment to promote equality between men and women.10 Article 5-2 and Article 7-1 of Law no. 81 of 25 March 1993.11 Decision (sentenza) 422, 12 September 1995. This judgement considers the

reform illegitimate according to Article 3 of the Constitution setting out the principle

of equality among citizens before the law and Article 51 on the equality of access ofmembers of both sexes to elective and public mandates (prior to its 2003 amend-ment).


Following a number of new attempts to re-introduce quotas andinspired by the French example of dual democracy, the legislatureeventually decided to opt for an anticipatory constitutional reformbefore moving onto specific positive action in the electoral law.Hence, Article 51 of the Constitution was amended following finalapproval by parliament on 7 March 2003 to include the followingprovision: ‘‘To this aim [that of equality of access of members of bothsexes to elective and public mandates] the Republic promotes withspecific instruments parity of opportunities between women andmen.’’12 The interest of this addendum is that positive actions couldhinge on the appositi provvedimenti (‘‘specific instruments’’) which arenow to follow and could well prove as controversial as their Frenchcounterparts discussed below.

Efforts to promote parity in the elections to the EuropeanParliament in June 2004 did not look very promising either. Themeasures taken comprised both stick and carrot. A sanction wasimposed in so far as any party which did not respect the newrequirement imposing a maximum limit of two thirds of one sex onthe lists of candidates would lose 50% of the subsidies designed tocover electoral campaign expenses.13 On the other hand, the partieswould be rewarded with an extra 5% funding to cover expenses whereone third of the elected party candidates were women. The reform initself was weak in that both sanction and reward were based onsubsidies. It was feared that (as has happened in France) the largerparties would take a strategic decision not to respect the law becausethey quite simply could afford to lose the subsidies. On top of that,the quota of a maximum limit per sex of two thirds only regulated thequantity and not the positions of the candidates within the party lists.This, as we will see below, was the problem with the first Belgian lawon quotas. Nevertheless, a further action was also undertaken for theItalian elections to the European Parliament but this time in the guiseof a sensitisation strategy, designed to change public attitudes to-wards the election of female candidates. A campaign called ‘‘Vote forWomen’’ (Io Voto Donna) was initiated by the Ministry for EqualOpportunities and publicised on national T.V. during the electioncampaign. All in all, and despite the above-mentioned deficiencies,

12 Article 51 (new).13 Law of 8 April 2004, n. 90 Norme in materia di elezioni dei membri del Parla-

mento europeo e altre disposizioni inerenti ad elezioni da svolgersi nell’anno 2004,Gazzetta Ufficiale n. 84, 9 April 2004.


the number of women has significantly increased between the twolegislative terms: from 11.5% for the 1999-2004 period (10 womenout of 87 members), to 19.2% after the 2004 elections (15 women outof 78 members).

Following these sadly thwarted, soft and ineffectual examples, wemove finally onto more elaborate or successful instances of imple-menting the parity principle with a consideration of the French andBelgian efforts. France provides an interesting, if not as yet terriblyencouraging, case study in so far as it represents the first instance ofthe constitutionalisation of the parity principle in the world (whereaswomen presently comprise only 12% of the National Assembly). Thecase of Belgium is then given particular and more enthusiasticattention for the reason that it is the only E.U. member state to haveintroduced a specific sex quota in its electoral law which has nowbeen applied twice for the selection of party candidates running forthe general elections and with a measurable degree of success.

France

In France, the idea of parity democracy was innovatively introducedas a constitutional principle following a long battle with the Conseilconstitutionnel as to the constitutionality of sex quotas for electoraloffice. The Council had given two decisions previously in 1982 and1999 declaring quotas for women to be unconstitutional.14 Followingconstitutional amendment and the removal of the constitutionalobstacle, a third decision of the Council delivered in May 2000 finallydeclared the principle of quotas to be constitutional (while stillfinding the legislation implementing the quota principle to beunconstitutional on a series of technicalities).15 This view has beenmore recently endorsed by the Council in a decision of April 2003 inwhich lists for the regional elections comprising alternate male andfemale candidates were deemed not incompatible with the parityprinciple.16

Hence, the constitutional amendment of 2000 was not the firstattempt to introduce quotas for women to electoral offices in France.

14 Decision 146 D.C. of 18 November 1982, Quotas based on sex I; Decision 407D.C. of 14 January 1999, Quotas based on sex II.

15 Decision 429 D.C., 30 May 2000, Quotas based on sex III.16 Decision 2003-468 D.C., 3 April 2003, on the law relating to the election of

regional councillors and representatives to the European Parliament, together withpublic subsidies to political parties.


Broadly speaking, the findings of unconstitutionality had regularlybeen grounded upon violations of Article 3 of the Constitution of1958 (‘‘national sovereignty belongs to the people. . . No section ofthe people, nor any individual may exercise it personally. . .’’) andArticle 6 of the Declaration of the Rights of Man 1789 (‘‘. . . allcitizens being equal [in the eyes of the law] are equally admissible toall dignities, offices and public employment, according to theircapacity, and without any distinction other than one based upon theirvirtues and their talents’’). The constitutional amendment to Articles3 and 4 of the Constitution overrode these objections.17

Once secured at the level of constitutional principle, theimportant question then became one of whether or not practicecould match the new constitutional reality or would the textualamendment merely provide a form of formal legal equality (albeitat the level of the Constitution) rather than achieving a realsolution to women’s under-representation which depends upon apolitical commitment to change. Unfortunately, the political com-mitment has been less than forthcoming. Parity was applied in thelocal elections of March 2001, in the elections to the Senate inSeptember 2001 and in the elections to the National Assembly inMay 2002, with the concept being implemented differently in eachset of elections. For the local elections parity was stipulated foreach group of six candidates. In the election to the Senate, themechanism took the form of alternate male and female candidateson the lists, the so-called ‘zipper’ system. In the election of thelower house, however, political parties were simply penalised whenthe gap between male and female candidates in the first ballot forthe 577 constituencies was bigger than 2%. Where such a dis-crepancy occurred, sanctions were proportional to the extent of theinfraction. In terms of the effectiveness of law on the equal accessof men and women in actually bringing more women into office,the results offer an ambivalent picture reflecting the differentelectoral formulae in each case. Whereas it has been a clear successfor the local elections with 47.5% of women elected in the com-munes with more than 3500 inhabitants, and has caused a minorripple in the Senate where 22/102 women were elected (causing the

17 Article 3 of the Constitution of 1958 now includes a final paragraph to the effectthat: ‘‘legislation favours equal access of women and men to electoral mandates and

elective functions’’ and Article 4 includes a new final paragraph stating that politicalparties shall ‘‘contribute towards putting into practice the principle set out in thefinal paragraph of Article 3 according to conditions laid down by Statute’’.


total number of female senators to rise from 19/321 or 5.92% to35/321 or 10.9%), it was been quite unsuccessful by contrast in theNational Assembly.

Belgium

By contrast, it is to the Belgian example that we finally turn in that itseems to provide the best model so far for legislative change andpromoting female candidates and their election to the legislativeassembly. Adopting a positive discrimination strategy in the form of alegally binding measure requiring a sex-quota in the electoral law, theBelgian story of parity begins with the Smet–Tobback law on quotaswhich was approved in 1994, and applied for the first (and in fact last)time in the elections to the Federal Parliament in 1999.18 New legis-lation intended to favour equal representation of men and women wasenacted in 2002 and was applied in the elections of 18 May 2003.

The law on quotas aims to promote a balanced distribution of menand women on the candidate lists by establishing a maximum limitper sex of two thirds.19 The quota is binding with regard to thequantitative composition of the list of candidates, but does not sayanything about the effective composition of the parliament, that is,the effective number of seats. There is no reference to the ‘quality’ ofthe lists’ composition either, that is to say there is no explicit mentionof the positions that male and female candidates ought to occupy.The order is, however, a crucial factor in the election of candidates. Ashort reference to the Belgian electoral law as it was for the 1999elections will clarify this point.

A priori, Belgium did not need a constitutionalisation of the parityprinciple because quotas were already accepted and established in theelectoral law since 1994. Yet, given that at this point the quota wascredited with a dynamic nature, that is to say it was supposed to beincreased over time, the principle of parity offered an ‘easy way’ tojustify an increase in the existing one third quota to a 50–50 splitregarding the sex-composition of the lists of candidates. In 2002,together with the reforms favouring equal representation of men andwomen, several revisions of the electoral law were also enacted.

18 It was applied for the first time on 9 October 1994 in provincial and localelections. However, a temporary quota of three quarters instead of that of two thirdswas used at these elections. The law on quotas did not apply in the 1995 general

elections. Quotas fully applied for the 1999 general, regional and European elections.19 Article 117b of the Electoral Law.


Among the latter, it will be seen below that a number of changes mayeffect the presence of women in the representative assemblies. Amajority of the new dispositions concerning the electoral law wereadopted by the Chamber of Representatives on 25 September 2002,and by the Senate on 7 November 2002.20 They were applied in the 18May 2003 elections, though in some cases with transitory provisions.The key changes are as follows:

(1) Amendments to Articles 10 and 11b of the Constitution (en-acted in February 2002).

On 24 January 2002, the Federal Chamber of Representativesvoted for an amendment to Article 10 of the Constitution, stipulatingthat ‘‘equality between women and men is guaranteed’’.21 The Senatehad earlier unanimously adopted the same amendment. To Article 11of the Constitution, para. 11b was also added, establishing that menand women are guaranteed by law equal access to public and electedpositions, and that both sexes shall be represented in all executivebodies.

(2) Transposition of the parity principle into the electoral law(enacted in July 2002).

In order to render these two constitutional principles effective,Vice-Prime Minister L. Onkelix proposed to exchange the principle ofquotas for that of parity, this time in the electoral law. Two concretemeasures were advanced: (1) Both a woman and a man must be listedas candidates for the top two positions. (2) On each list the gapbetween male and female candidates cannot be greater than 1. InMay 2002, the members of the Chamber of Representatives sup-porting the Bill did not succeed in getting a majority for the zipperprinciple on the whole list.

The final law, as it appeared in the Monitor, contains the twofollowing measures.22 The first proposition was partly maintained,meaning that on each list the gap between male and female candidates(both effective and substitutes) cannot be higher than one. Further-more, both women and men must be listed as candidates for the top

20 See documents: Chamber 2001–2002, Doc. 50.1806/1 to 18, and 2035; Senate

2001-2002, Doc. 2-1280/1 to 5, and Doc. 2-1281/1 to 5. The law providing forchanges in the electoral legislation and the law providing for changes in the ElectoralCode were signed by the King on the 13 December 2002, and published in the

Moniteur belge on 10 January 2003.21 Article 10: ‘‘L’egalite entre des femmes et des homes est garantie. ’’22 The law was enacted on 18 July 2002, and published in theMoniteur belge on 28

August 2002.


three positions. This was a temporary disposition for the 2003 elec-tions. For subsequent elections, the law is to be fully respected, that isto say, that both a woman and a man must be listed as candidates forthe top two positions. As regards the positions of the candidates in thelists the order remains unspecified and is up to the parties to decide,although the proportion 50/50 is to be respected in the whole list.

In the light of the shortcomings of the first law on quotas from1994, this new legislation was thought to be a more efficient way toattain the aim for which it was intended. One of the main criticismshad been the disregard for the positions occupied by candidateswithin the lists. Even though the zipper principle of strict alternationwas not approved, the requirement to have at least one female can-didate within the top three – for the 2003 elections – and top twopositions – after that – was thought likely to enhance significantly thepresence of women in the Chamber. On the other hand, the fact thatthe quota per se increased to 50% was thought also capable ofhelping female candidates to reach ‘fighting positions’, which in caseof unexpected electoral gains of the party, would bring them to office.The first results after application of the new reforms clearly supportthis assessment, given that the number of women in the federalChamber went up to around 35% and in the Senate to 37.5%.

CONCLUSION

The comparative study demonstrates that legal and constitutionalreforms envisaging the production of de facto as opposed to de jurepolitical equality are complex mechanisms requiring careful consid-eration of their primary and side effects. It has been observedrepeatedly that such legal reform measures can come up againstmajor legal and constitutional obstacles in the form of (1) problemswith enactment of the parity principle itself; (2) problems with the(un)constitutionality of implementation measures; (3) problems withthe limited scope of parity mechanisms such that their actual impactis of marginal significance since they are too dependent on otherexisting institutional factors (such as the electoral system or partystructures) to have a tangible effect on patterns of representation.

That such measures are needed, however, appears undisputable inorder to increase women’s political participation. The evident dis-parity in the composition of the parliaments of E.U. member statesshows that gender equality cannot be taken for granted. It does not


just happen but requires effort and affirmative measures to bring itabout. The case of Belgium with its incremental reforms shows theefficiency of these kind of strategies for enhancing women’s presencein parliaments: women numbered 12% in the Federal Chamber ofRepresentatives in 1995, this increased to 23.3% after the 1999elections with the reform on quotas, and went up again to more than35% in 2003. Still, in some cases, the poor presence of women insome E.U. national assemblies reveals a clear disparity betweenprinciple and practice. In this regard a simple constitutionalisation ofquotas or the parity principle is insufficient without more. Thestatement of principle requires some regulatory, or legally bindingmeasure to put words into action.

Thus, our conclusion is that even where parity measures areintroduced at the highest legal and constitutional levels they havelittle chance of producing effective outcomes where they operatewithin a climate of gender biased party political structures and do notproperly adjust to national electoral systems. An amelioration of thepresent gender balance of national assemblies in Europe demands are-imagination of not only de jure constitutional principle but also itsinterrelationship with specific institutional reforms, and the existingelectoral and party systems. In this respect the Belgian model offersthe clearest example of best practice so far. It is to be hoped thatother legislatures will watch and learn from this example.

REFERENCES

Barnard, C., ‘‘Gender Equality in the E.U.: A Balance Sheet’’ in The E.U. and

Human Rights, ed. P. Alston with M. Bustelo & J. Heenan, (Oxford: OxfordUniversity Press, 1999).

Beveridge, F., Nott S. & Stephen K. eds., Making Women Count. Integrating Gender

into Law and Policy-making (Aldershot: Ashgate, 2000).Beveridge, F. & Shaw J. eds., Feminist Legal Studies (special edition), 10/3 (2002).Dahlerup, D., ‘‘Using Quotas to Increase Women’s Political Representation’’ in

Women in Parliament: Beyond Numbers, ed. A. Karam (Stockholm: InternationalI.D.E.A., 1998).

Lovenduski, J., ‘‘Introduction: The Dynamics of Gender and Party’’ in Gender and

Party Politics, eds., Lovenduski, J. & P. Norris, (eds.), (London: Sage, 1993).Lovenduski, J. & Norris, P. eds, Gender and Party Politics (London: Sage, 1993).Norris, P., ‘‘Choosing Electoral Systems: Proportional, Majoritarian and Mixed

Systems’’, International Political Science Review 18/3 (1997), 297.

Pollack, M. & Hafner-Burton, E., ‘‘Mainstreaming Gender in the European Union’’,Journal of European Public Policy 7/3 (2000), 432.


Reynolds, A. & Reilly, B., et al., The International I.D.E.A. Handbook of ElectoralSystem Design (Stockholm: International I.D.E.A., 1997).

Young, I.M., Intersecting Voices: Dilemmas of Gender, Political Philosophy, andPolicy (Princeton: Princeton U.P., 1997).

Young, I.M., ‘‘Polity and Group Difference: A Critique of the Ideal of Universal

Citizenship’’ in Feminism & Politics, ed. A. Phillips, (Oxford: Oxford UniversityPress, 1998).

SUSAN MILLNS

Kent Law SchoolEliot CollegeThe University of KentCanterburyKent CT2 7NSUKTel: +44-1227-823331Fax: +44-1227-827831E-mail: [email protected]

MERCEDES MATEO DIAZ

Unite SPRIUniversite catholique de LouvainPlace Montesquieu, 1 [Bte. 7/7]1348 Louvain-la-NeuveBelgiumTel: +32-10-474215Fax: +32-10-474603E-mail: [email protected]


parity, power and representative politics: the elusive pursuit of gender equality in europe

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