In her lecture, Prof. Dr. Susanne Baer pointed out that “gender” is a rather demanding concept, dedicated to capture the –changing, and controversial –nature of social structure, cultural and political practice, as well as intimate relationships and personal identity, as it is marked by our understandings of sex and sexuality, specifically regarding men/ masculinity and women/ femininity. Since it is powerful in life, it must be powerful in law as well. Certainly, varying contexts do make a difference, in that questions of gender may seem more or less relevant to people in different situations of life (compare a single mother to an affluent businessman) and in different economic and political contexts (compare a country in transition from authoritarian to democratic rule, or backwards, to an “old” democracy, or an autocratic state, and compare the gender regimes in varieties of capitalism). But feminist and gender studies of law have exposed some features that inform a gender competent analysis, to ask the right question that then results in nuanced answers. Against this background, the session presents basic elements of a gender competent understanding of law. One such element is the development from notions of “the” woman, to a recognition of women, to gender, from hegemonic to more differentiated and even fluid notions of sex. Another element is the law ́s problematic distinction between public and private, which informs understandings of politics (and the rules that govern democracy), categorical distinctions between civil and public law, and many notions in law from liberty to family, from self-determination and contracts, etc, Also, a gender competent analysis of law is based on a thorough understanding of (controversial) notions of equality and discrimination, informed by an understanding of inequality as hierarchy, dominance, exclusion or harm. In addition, a focus on gender means, today, to also always confront the challenge of understanding equality as multidimensional (or “intersectional”), thus take “sex +” into account.
Prof. Dr. Susanne Baer serves as Justice of the Federal Constitutional Court in Germany, elected by parliament, the Deutscher Bundestag, in 2011 to the First Senate, for a 12 years term. She is also the Professor of Public Law and Gender Studies at Humboldt University Berlin and a James W. Cook Global Law Professor at the University of Michigan Law School, and has taught at CEU Budapest, in Austria, Switzerland and Canada. She received an honorary doctorate from the University of Michigan in 2014 and was elected a Coresponding Fellow of the British Academy in 2017. Justice Baer studied law and political science and joined movements against discrimination and domestic violence; she directed the GenderCompetenceCentre to advise the German federal government on gender mainstreaming 2003-2010 and co-drafted German standards for equality in research. At Humboldt University, she served as Vice-President and as Vice Dean and Director of Gender Studies, founded the Law and Society Institute Berlin and the Humboldt Law Clinic in Fundamental and Human Rights. Her publications in English include: Comparative Constitutionalism, 2016 (with Norman Dorsen, Michel Rosenfeld, András Sajó, Susanna Mancini); Privatizing Religion, Constellations 1 (2013), 68-84; Equality, in: Rosenfeld/ Sajo, The Oxford Handbook of Comparative Constitutional Law, 2012, 982-1001; Dignity, Liberty, Equality: A Fundamental Rights Triangle of Constitutionalism, Toronto LJ 4 (2009) 417-468; The Difference a Justice May Make: Remarks at the Symposium for Justice Ruth Bader Ginsburg, Columbia J of Gender & Law 25 (2013).