This article investigates the extent to which the Romanian Constitution has provided for adequate means to enhance women’s equal citizenship in its first twenty-five years of existence. Taking as its starting point Simone de Beauvoir’s thought, encompassed in the idea that gender inequality is derived from defining women as ‘the Others’ or as totally opposite to men, the article shows that since its adoption in 1991, the Romanian Constitution began to depart from the stereotypical and antagonistic understanding of women and men’s roles in society that Romania had inherited from its Socialist past. In 2003, when the Constitution was reviewed for Romania’s EU and NATO accession, the requirement that only men should serve in the military was replaced with the guarantee of equal opportunities for men and women to occupy public, civil or military positions. Meanwhile, the Constitutional Court inched toward being an active actor in advancing gender equality. For example, in 2005 the Court held that allowing only women in the military, but not men in the same position, to take parental leave was unconstitutional and, in that same year, it gave women’s reproductive rights a rather liberal interpretation. However, this article argues that the developments that have taken place have not been progressive enough. The Constitution still provides only for paid maternity leave, provides special working conditions only for women, does not explicitly mention the protection of reproductive autonomy, does not connect bodily rights with equality but with privacy, and lacks clarity on the admissibility of measures – such as gender quotas – to promote more women into the public sphere.
This paper was prepared for the ICON∙S Conference on ‘Borders, Otherness and Public Law’ held at Humboldt University of Berlin, Germany on June 17-19, 2016, the panel on ‘The Romanian Constitution at 25: a Critical Examination of Romanian Constitutionalism through its Others’. I want to thank Silvia Șuteu for organizing this panel and for the constructive feedback she provided on my work. I also want to thank the anonymous reviewer for the thoughtful and useful comments.
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