The (dis)establishment of gender: Care and gender roles in the family as a constitutional matter

Abstract

This article reasons that for women, as constitutional subjects, the emancipatory promise of constitutionalism was—from its inception—fundamentally limited by the entrenchment of the separate spheres tradition. Focusing on evolving constitutional jurisprudence in the US, Germany and Italy, the article describes a gradual and still imperfect process of (dis) establishment of the originally enshrined gender order, as it has unfolded since the 1970s in US and European constitutionalism. It is argued that these processes have allowed the constitutional doctrine of sex equality to challenge the most forthright expressions of the separate spheres ideology, denying the possibility of according men and women a different legal status of rights and duties and keeping women away from the marketplace. In spite of this, to this day, the sex constitutional equality doctrine has been an inadequate tool to fully subvert the pre-established gender order in both its transatlantic iterations. In the US, we find assimilationist workerism with its anti-stereotyping conception of gender equality, providing no support for working women, and in Europe accommodationist workerism, wherein special measures are fostered at the risk of entrenching rather than subverting existing gender roles. The article then describes recent evolutions in constitutionalism pointing to a promising third way, with Nordic inspiration, which, challenging traditionally accepted notions of family privacy and foregrounding fatherhood as opposed to just motherhood, would allow us to retain the central importance attached to care and reproduction, but at the same time assist in the process of overcoming traditional gender assumptions and stereotypes built around them.