¹ See, e.g., Csilla Kollonay Lehoczky, The Significance of Existing EU Sex Equality Law for Women in the New Member States: The Case of Hungary, 12 Maastricht J. Eur. & Comp. L. 467 (2005); Malgorzata Zysk, Age Discrimination Law in a Country with a Communist History: The Example of Poland, 12 Eur. L.J. 371 (2006); Alexandra Gerber, The Letter Versus the Spirit: Barriers to Meaningful Implementation of Gender Equality Policy in Poland, 33 Women's stud. InTl F. 30 (2010); Kriszta Kovács, Equality: The Missing Link, in Constitution for a Disunited Nation. On Hungary's 2011 Fundamental Law 171 (Gábor Attila Tóth ed., 2012).Google Scholar

² For example, the Anti-Discrimination Act (ADA), which should have been in place at the time of accession by the Czech Republic to the EU in 2004, was only adopted and entered into force in 2009. See Barbara Havelková, Challenges to the Effective Implementation of EC Gender Equality Law in the Czech Republic – An Early Analysis, in Wandel der Geschlechterverhältnisse durch Recht? 95 passim (Kathrin Arioli, et al. eds., 2008).Google Scholar

³ Each subsequent draft of the ADA that was proposed decreased the generosity of protection that it offered. For example, while the original 2004 draft, prepared by the Government Council of Human Rights, contained a mediation competence for the equality body and an independent right for NGOs to bring cases where an indeterminate number of individuals were victims of an act of discrimination, the final ADA contained no such provisions. Id. Google Scholar

⁴ Litigation has been scarce, and claimants’ chances of winning have been minuscule. Barbara Havelková, Gender in Law Under and After State Socialism: The Example of the Czech Republic, 151–60 (2013) (unpublished D.Phil. thesis, University of Oxford). Sometimes, this has been due to badly drafted norms and the courts’ unwillingness to correct them through teleological interpretation and indirect effect under EU law. In particular, the threshold for compensation of immaterial harm is too high and based on the wrong criteria, namely the diminution of standing in society. But even when the norms themselves are unproblematic, courts tend to misapply basic concepts. With regards to direct discrimination, for example, courts typically look for “motivation” or “motive” to establish that discrimination happened on the basis of sex, which, without fully shifting the burden of proof, makes cases extremely hard to win. Furthermore, the ordinary courts do not understand that the prohibition of indirect discrimination targets systemic prejudice and harms. I have discussed some examples of this previously. See generally Havelková supra note 2; see Barbara Havelková, The Legal Notion of Gender Equality in the Czech Republic, 33 Women's Stud. Int'l F. 21 (2010).Google Scholar

⁵ Czech Senate, Resolution no. 377 of 2008 (23 Apr. 2008), http://www.senat.cz/xqw/xervlet/pssenat/htmlhled?action=doc&value=46806 (emphasis added).Google Scholar

⁶ Obvodní soud 14 Mar. 2005 [of District Court for Prague], 23 C 11/2003-70 publ. in: V.S. proti SPGroup (Czech).Google Scholar

⁷ Id. (emphasis added). Elsewhere in the judgment, the court states that managerial prerogative should not be judicially reviewed.Google Scholar

⁸ The Article addresses sex and gender as it applies to women. A look at LGBTQ issues is beyond its scope.Google Scholar

⁹ E.g., Nachova v. Bulgaria, 2005-VII Eur. Ct. H.R. 42 (2005).Google Scholar

¹⁰ I use “bias” in the following not to imply a sentiment or inclination, but a trend or tendency that is not neutral.Google Scholar

¹¹ The Czech Constitutional Court heard this case in 1999. It was dismissed in part as manifestly unfounded and in part because the Court found a lack of competence to review. I. ÚS 297/99 from 20 Oct. 1999, unpublished.Google Scholar

¹² D.H. v. Czech Republic, App. No. 57325/00 Eur. Ct. H.R. (2006).Google Scholar

¹³ D.H. v. Czech Republic, 2007-IV Eur. Ct. H.R. 43 (2007).Google Scholar

¹⁴ The Czech, Hungarian, Lithuanian, and Ukrainian judges were joined in the majority by a judge from San Marino. The French president of the Chamber concurred; the Portuguese judge dissented.Google Scholar

¹⁵ The authors of the dissent were Jungwiert (Czech Republic), Župančič (Slovenia), Šikuta (Slovakia), Borrego Borrega (Spain).Google Scholar

¹⁶ D.H. v. Czech Republic, 2007-IV Eur. Ct. H.R. 43 (2007). (J. Šikuta, dissenting).Google Scholar

¹⁷ Although the case study used here is Czechoslovakia and the Czech Republic only, and the region of Central and Eastern Europe was not homogenous in its treatment of women or the pursuit of equality, the description of the general trajectory provided here is applicable to most countries in the region.Google Scholar

¹⁸ U.S. doctrine and even scholarship, which through its case law marks a return to a formal understanding of equality, is less and less useful for discussions about European developments.Google Scholar

¹⁹ These could certainly be found. At the national level, even countries that are often perceived as being at the forefront of the gender equality project, such as Sweden, have been criticized for failing to adopt sufficient policies to close the gender wage gap and eliminate patterns of horizontal and vertical segregation. See generally Carlson, Laura, Searching for Equality, Sex Discrimination, Parental Leave and the Swedish Model with Comparisons to EU, UK and US 81–226 (2007). At the EU level, many gaps in protection remain, for example as regards protection from intersectional discrimination. See Schiek, Dagmar, From European Union Non-Discrimination Law Towards Multidimensional Equality Law for Europe, in Non-Discrimination Law, Comparative perspectives on multidimensional equality law 77–89 (Dagmar Schiek & Victoria Chege eds., 2009).Google Scholar

²⁰ Although this Article uses the example of gender, the description of the trajectories applies to equality and antidiscrimination law more generally.Google Scholar

²¹ This story might well apply to other parts of the world, especially to countries with a history of socialism. For a similar observation about an inverted equality trajectory in India, where statutory protections from discrimination are relatively new, see Khaitan, Tarunabh, Transcending Reservations: A Paradigm Shift in the Debate on Equality, 20 Econ. & Pol. Wkly. 8 (2008).Google Scholar

²² “Symbolic” denotes non-material aspects of speech or acts which can be harmful. Some feminist scholars have used this concept for example to capture the devaluation of women in the context of pornography. See generally Catharine A. MacKinnon, Only words (1994).Google Scholar

²³ I borrow the terms and concepts of recognition and redistribution from Nancy Fraser. See generally Fraser, Nancy & Honneth, Axel, Redistribution or Recognition?: A Political-Philosophical Exchange (2003). Exploring whether and how gender inequality and injustice are tied either to material (socio-economic, redistributive) aspects of inequality on the one hand, or symbolic (socio-cultural or recognition) aspects on the other would be an interesting and important endeavor, especially considering the Marxist underpinnings of the Czechoslovak state socialist ideology and policy. Due to space constraints, this is not addressed here.Google Scholar

²⁴ Fredman points out that its precise meaning has been much contested between neo-liberals, modified liberals and critical theorists, including feminists. See Fredman, Sandra, Discrimination, in Oxford Handbook of Legal Studies 202 (Peter Cane & Mark Tushnet eds., 2003).Google Scholar

²⁵ Christopher McCrudden, Equality and Non-Discrimination, in English Public Law 581, 582 (David Feldman ed., 2004).Google Scholar

²⁶ Using indigenous terminology and categorization is not really possible. Under State Socialism, there was a limited concept of equality derived from Marxism; in the post-communist period, there has been none.Google Scholar

²⁷ See Collins, Hugh, Discrimination, Equality and Social Inclusion, 66 Mod. L. Rev. 16 (2003).Google Scholar

²⁸ See Fredman, Sandra, Discrimination Law 2 (2011).Google Scholar

²⁹ Collins, supra note 27, passim. Google Scholar

³⁰ Id.; see also Fredman, supra note 28, at 14–19. Fredman points out four dimensions of substantive equality: (1) It aims at breaking the cycle of disadvantage, also called the redistributive dimension, (2) it requires respect and dignity, also called the recognition dimension, (3) it accommodates difference and demands structural change, also called the transformative dimension, and (4) it calls for social inclusion and political voice, also known as the participative dimension. Id. at 25–33.Google Scholar

³¹ Catharine A. Mackinnon, Feminism Unmodified: Discourses on Life and Law 32–46 (1987).Google Scholar

³² Disadvantage has been emphasized by courts, for example in Supreme Court of the United States in Brown v. Board of Education, 347 U.S. 483, 495 (1957), as well as by academics. For Denise Réaume, a “substantive” understanding of equality is characterized by being sensitive to the “actual conditions of life of members of disadvantaged groups.” See Denise Réaume, Discrimination and Dignity, 63 La. L. Rev. 645, 648 (2003). MacKinnon stresses that “the opposite of equality is hierarchy, not difference,” and that therefore, the aim of equality law should be limiting disadvantage, not just eliminating any difference in treatment. See Catharine A. Mackinnon, Sex equality 26 (2007).Google Scholar

³³ For a more comprehensive list and analysis of the wrongs of direct and indirect discrimination, see Altman, Andrew, Discrimination, in Stanford Encyclopedia of Philosophy (Edward N. Zalta ed., 2015).Google Scholar

³⁴ This term is applied to disability only in EU law, but could be understood in a broader sense to include the accommodation of family life in the workplace.Google Scholar

³⁵ See generally Fredman, Sandra, Breaking the Mold: Equality as a Proactive Duty, 60 Am. J. Comp. L. 265 (2012).Google Scholar

³⁶ Fredman, supra, note 28, at 11.Google Scholar

³⁷ See, e.g., Jo Shaw, Mainstreaming Equality and Diversity in the European Union, 58 Current Legal Probs. 255 (2005). For an account of the difficulties gender mainstreaming has faced in the CEE, see Bretherton, Charlotte, Gender Mainstreaming and EU Enlargement: Swimming Against the Tide?, 8 J. Eur. Pub. Pol'y 60 (2001).Google Scholar

³⁸ If I were to map the concepts of formal and substantive equality on the characterization of Western European trajectories that I offer below, phases (1) and (2) could be considered as having adopted a formal understanding, while phase (3) adopted a substantive one.Google Scholar

³⁹ See infra notes 72–76.Google Scholar

⁴⁰ Jiří Boguszak, K sociální podstatě práva (On the social basis of law), Právník 297, 300 (1967). See also Markovits, Inga, Socialist vs. Bourgeois Rights: An East-West German Comparison, 45 U. Chi. L. Rev. 612 (1978).Google Scholar

⁴¹ Viktor Knapp, O spravedlnosti (On Justice), Právník 310, 312 (1966) (emphasis added).Google Scholar

⁴² Id. See also Josef Blahož, K otázce svobody o rovnosti v kapitalistických státech (About freedom and equality in capitalist states), Právník 517, 523 (1980).Google Scholar

⁴³ Nález Ústavnfho soudu Ćeské republiky ze dne 26.04.2006 (ÚS) [Decision of the Czech Constitutional Court of Apr. 26, 2006] sp.zn Pl. ÚS 37/04, publ. in No. 419/2006 Coll.; Nález Ústavníhosoudu České republiky ze dne 12.08.2015 (ÚS) [Decision of the Czech Constitutional Court of Aug. 12, 2015] sp.zn III.ÚS 1136/13; Nález Ústavní soud České republiky ze dne 22.09.2015 (ÚS) [Decision of the Czech Constitutional Court of Sept. 22, 2015] sp.zn III.ÚS 1213/13; Nález Ústavní soud České republiky ze dne 08.10.2015 (ÚS) [Decision of the Czech Constitutional Court of Oct. 8, 2015] sp.zn Ref. No. III.ÚS 880/15.Google Scholar

⁴⁴ One case of indirect discrimination on the basis of sex concerned the common taxation of spouses. The tax regime offered a beneficial tax rate to employed couples, but not to self-employed couples. The courts did not accept the plaintiffs’ claim that the tax code was indirectly discriminatory against women, as most part-time working carers were women. Rozsudek Nejvyššího správního soudu České republiky ze dne 21.05.2009 [Judgment of the Supreme Administrative Court of May 21, 2009] čj. 7 Afs 103/2008-71. In an case of indirect discrimination of Roma in education, the trial courts, as well as the Constitutional Court, emphasised the situation of the individual over the stark statistical disparities pointing to a structural problem, and found no discrimination. Nález Ústavní soud České republiky ze dne 12.08.2015 [Decision of the Czech Constitutional Court of Aug. 12, 2015] sp.zn III.ÚS 1136/13.Google Scholar

⁴⁵ The provision was contained in the new Antidiscrimination Act which implemented EU law. Because the provision on positive action in EU law was permissive rather than obligatory, the Court was able to strike the implementing Slovak provision down. Nález Ústavného súdu Slovenskej republiky zo dňa 18.10.2005 [Decision of the Constitutional Court of the Slovak Republic] sp. zn. Pl. ÚS 8/04-202, 18 Oct. 2005, publ. in No. 539/2005 Coll.Google Scholar

⁴⁶ I mostly draw on Bob Hepple's work. Writing about labor law in Western Europe, he describes three phases of equality: (1) Formal, in 1957–1975; (2) substantive, in 1976–1999; and (3) comprehensive or transformative, in 2000–2004. Bob Hepple, Equality at Work, in The Transformations of Labour Law in Europe 129–64 (Bob Hepple & Bruno Veneziani eds., 2009). Sandra Fredman similarly identifies a “new generation” of equality rights, starting in the 2000s, which includes the positive duty to promote equality. See Fredman, Sandra, Equality: A New Generation?, 30 Indus. L.J. 163 (2001).Google Scholar

⁴⁷ Mary Wollstonecraft was a prominent proponent. Mary Wollstonecraft, A Vindication of the Rights of Woman (1792).Google Scholar

⁴⁸ For an overview of this development, see, for example, Arvonne S. Fraser, Becoming Human: The Origins and Development of Women's Human Rights, 21 Hum. Rts. Q. 853 (1999); see also Lacey, Nicola, Feminist Legal Theory and the Rights of Women, in Gender and Human Rights 13 (Karen Knopp ed., 2004).Google Scholar

⁴⁹ This is the term used in Marxist and state socialist writing.Google Scholar

⁵⁰ The other two tenets of Engels’ program were the inclusion of women in employment and the collectivization of household duties.Google Scholar

⁵¹ Barbara Havelková, The Three Stages of Gender in Law, in The Politics of Gender Culture under State Socialism: An Expropriated Voice 31, 32–37 (Hana Havelková & Libora Oates-Indruchová eds., 2014).Google Scholar

⁵² Id. Google Scholar

⁵³ This was not only the case in Western Europe, but also notably in North America, with the U.S. playing a leading role.Google Scholar

⁵⁴ As Hepple points out, the international and constitutional law guarantees were often adopted immediately after WWII; the statutory guarantees, however, were only adopted beginning in the 1960s. Hepple, supra note 46, at 129–64.Google Scholar

⁵⁵ The U.S. preceded this with the U.S. Civil Rights Act of 1964.Google Scholar

⁵⁶ EEC Directive on the approximation of the laws of the Member States relating to the application of the principle of equal pay for men and women. Council Directive 75/117 of 10 Feb. 1975, O.J. (L 45) (EC).Google Scholar

⁵⁷ EEC Directive on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. Council Directive 76/207 of 14 Feb. 1976, O.J. (L 39) (EC).Google Scholar

⁵⁸ Id. at art. 2(4).Google Scholar

⁵⁹ Affirmative action for race was enabled in the 1960s in the U.S. See, e.g., Ruth Bader Ginsburg & Deborah Jones Merritt, Affirmative Action: An International Human Rights Dialogue, 21 Cardozo L. Rev. 253 (1999).Google Scholar

⁶⁰ Case 96/80, Jenkins v. Kinsgate, 1981 E.C.R. 911.Google Scholar

⁶¹ The U.S. Supreme Court developed its doctrine of “disparate impact” in 1971. Griggs v. Duke Power Co., 401 U.S. 424 (1971).Google Scholar

⁶² Mark Bell, The Principle of Equal Treatment: Widening and Deepening, in The Evolution of EU Law 611–40 (Paul Craig & Grainne De Burca eds., 2011).Google Scholar

⁶³ Hepple, supra note 43, at 154–60.Google Scholar

⁶⁴ The term “transformative” is often used to highlight a socio-economic dimension. See Fredman, Sandra, Human Rights Transformed: Positive Rights and Positive Duties (2008); see also Hepple, supra note 43, at 155.Google Scholar

⁶⁵ Hepple, supra note 46, at 155.Google Scholar

⁶⁶ Although developed in the context of the US, this characterization is applicable to the EU development. Jack M. Balkin & Reva B. Siegel, The American Civil Rights Tradition: Anticlassification or Antisubordination?, 58 U. Miami L. Rev. 9 (2003). Some authors categorize this approach based on a positive duty to promote equality as constituting a separate, fourth generation of equality law; see Fredman, supra note 43, passim. Google Scholar

⁶⁷ Equality Act 2010, c. 15, § 4.Google Scholar

⁶⁸ The EU has the competence to combat discrimination on the basis of “sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” Treaty on the Functioning of the European Union art. 19, Oct. 26, 2012, 2012 O.J. (C 326) 47. It has done so through a series of directives. The other grounds mentioned in the EU Equality Act 2010 were interpreted as covered by the ground of “sex” by the CJEU. The ECHR of 1950 prohibits discrimination on the basis of “sex, race, color, language, religion, political or other opinion, national or social origin, associaton with a national minority, property, birth or other status.” This is a wider list than the one contained in the EU and the UK legislation, but the duty is more limited. One could argue about antidiscrimination guarantees that the wider the group of duty-bearers and the more far-reaching the duties, the more limited the grounds.Google Scholar

⁶⁹ For a discussion of their role in antidiscrimination law, see Khaitan, Tarunabh, A Theory of Discrimination Law 30–38 (2015).Google Scholar

⁷⁰ Convention for the Protection of Human Rights and Fundamental Freedoms art. 14, Nov. 4, 1950, 213 U.N.T.S. 221.Google Scholar

⁷¹ The UK Equality Act 2010 speaks about socio-economic inequalities in relation to the public sector equality duty. Equality Act 2010, c. 15, § 1. But as this provision is very limited in its definition of duty-bearers, it has not been extended to private, horizontal relations, such as employment or access to goods and services. See my comment about the inverse relationship between the scope and grounds, supra note 68.Google Scholar

⁷² Knapp, supra note 41, at 311.Google Scholar

⁷³ The general leveling of wages can be seen as a compensation for the general lack of freedom in society. See, e.g., Walter D. Connor, Socialism, Politics and Equality: Hierarchy and Change in Eastern Europe and the USSR 23, 217 (1979).Google Scholar

⁷⁴ Other grounds such as religion or belief, disability, age, or sexual orientation were not addressed either. As these have entered the antidiscrimination landscape more recently, and in the case of the EU only in this millennium, it is not surprising that these were not specifically addressed during the period of state socialism.Google Scholar

⁷⁵ Constitutional Act No. 150/1948 Coll. (1948), art. 3, § 2 (Czechoslovakia) (emphasis added).Google Scholar

⁷⁶ Id. § 1(2).Google Scholar

⁷⁷ Constitutional Act No. 100/1960 Coll. (1960), art. 20, § 3 (Czechoslovakia).Google Scholar

⁷⁸ Id. art. 27.Google Scholar

⁷⁹ Constitutional Act No. 65/1965 Coll. (1965), art. 7.Google Scholar

⁸⁰ These are not specifically state socialist but common to Germanic legal systems.Google Scholar

⁸¹ See generally Aleš Gerloch & Jiří Čapek, Teorie práva 149–57 (2003).Google Scholar

⁸² The provision was weaker in the 1948 Constitution in that it only required that “interpretation and use of all other legal acts be in harmony with the Constitution.” Constitutional Act No. 150/1948, § 172(3). The 1960 Constitution was more categorical in stating that “statutes or other legal acts must not contravene the Constitution.” Constitutional Act No. 100/1960 art. 111, § 2. Some constitutions, such as the European Charter of Fundamental Rights, art. 52, § 5, or the current Czech Charter, art. 41, § 1, have a general provision that limits the effect of some rights or principles—often socio-economic—to the extent guaranteed by statute. This was not the case in the state socialist constitutions.Google Scholar

⁸³ Vladimír Mikule & Marie Kalenská, K otázce rovnosti před zákonem (On equality before the law), Právník 511 (1968) (emphasis added).Google Scholar

⁸⁴ Parties could argue before ordinary courts that statutory or regulatory law should be interpreted or even misapplied according to the constitution and its principles.Google Scholar

⁸⁵ Constitutional Act No. 43/1968 Coll. (1968).Google Scholar

⁸⁶ Inga Markovits, Justice in Luritz, 50 Am. J. Comp. L. 819, 848 (2002). See also ZdeněK Kühn, Aplikace práva Soudcem V ÈŘE Středoevropského Komunismu a Transformace (The Judicial Application of Law During Central European Communism And Transformation) 70 (2005).Google Scholar

⁸⁷ The lack of independence of the state socialist judiciary is well documented. See, e.g., Otakar Motejl, Soudnictví a jeho správa (Judiciary and its Control), in Komunistické Právo v Ceskoslovensku. Kapitoly z dějin bezpráví (Communist Law in Czechoslovakia. Chapters from the History of Unlawfulness) 813–21 (Michal Bobek et al. eds., 2009).Google Scholar

⁸⁸ The guarantees were used in interpretation by ordinary courts in the 1950s, but there is no record of any claims brought to court on the basis of individual equality or antidiscrimination rights.Google Scholar

⁸⁹ Marie Kalenská, Vztah norem socialistiché morálky k pracovnímu právu (The relationship between socialist morality and labor law), Právník 837, 847 (1962).Google Scholar

⁹⁰ Id. at 846.Google Scholar

⁹¹ Id. at 845.Google Scholar

⁹² Markovits, supra note 40, at 625.Google Scholar

⁹³ Id. at 625.Google Scholar

⁹⁴ George A. Bermann, The Struggle for Law in Post-Soviet Russia, in Western Rights? Post-Communist Application 41, 54 (András Sajó ed., 1996).Google Scholar

⁹⁵ They have also been the subject of considerable attention, and some disagreement, from feminist legal scholars. For example, Alison Jaggar advocates for greater recognition of difference, and Martha Minow supports gender - neutrality. Alison M. Jaggar, Sexual Difference and Sexual Equality, in Theoretical Perspectives on Sexual Difference (Deborah Rhode ed., 1990); Martha Minow, Adjudicating Differences: Conflicts Among Feminist Lawyers in Conflicts in Feminism (Marianne Hirsch & Evelyn Fox Keller eds., 1990).Google Scholar

⁹⁶ This is enshrined, for example, in the EU's recognition that “provisions concerning the protection of women, particularly as regards pregnancy and maternity” do not constitute a breach of the principle of equal treatment. See Council Directive 2006/54, art. 28(1), 2006 O.J. (L 204) (EC). Special treatment still has opponents. As Fredman points out, “different” treatment has been opposed by liberals, who argue that equality should be symmetrical, as well as by neo-liberals, who reject interference with the “free” market. See Fredman, Sandra, Women and the law 305 (1997).Google Scholar

⁹⁷ MacKinnon, for example, has criticized the sameness-difference paradigm as obscuring the fact that the unchallenged norm, the standard of comparison, is male. See Mackinnon, supra note 32, at 32–46.Google Scholar

⁹⁸ On the debates in the West, see Fredman, supra note 96, at 304–08.Google Scholar

⁹⁹ For example, Nanette Funk states that state socialism “failed to acknowledge” the “difference [between men and women].” Nanette Funk, Introduction: Women and Post-Communism, in Gender Politics and Post-Communism 1, 6 (Nanette Funk & Magda Mueller eds., 1993).Google Scholar

¹⁰⁰ Alison M. Jaggar, Feminist Politics and Human Nature 67 (1983).Google Scholar

¹⁰¹ Id. Google Scholar

¹⁰² Id. at 67–68.Google Scholar

¹⁰³ Id. at 68 (citing Karl Marx, Capital: A Critique of Political Economy 178 (1967)).Google Scholar

¹⁰⁴ I thank Michael Wrase for helpful discussions on this point.Google Scholar

¹⁰⁵ Senta Radvanová et al., Žena a právo (Woman and the law) 6 (1971) (emphasis added).Google Scholar

¹⁰⁶ Havelková, supra note 51, at 48.Google Scholar

¹⁰⁷ For a similar point about the U.S., see Catharine A. Mackinnon, Toward a Feminist Theory of the State 216–17 (1989).Google Scholar

¹⁰⁸ See infra note 136 and 137.Google Scholar

¹⁰⁹ This is the Aristotelean formulation of the equality principle. For a discussion and a feminist critique of this standard, see Catharine A. Mackinnon, Toward A Feminist Theory Of The State 225 (1989).Google Scholar

¹¹⁰ Constitutional Act No. 65/1965 Coll. (1965), § 161 (Czechoslovakia).Google Scholar

¹¹¹ Radvanová, supra note 105101, at 191–92 (emphasis added).Google Scholar

¹¹² Maternity leave of eighteen weeks, which was introduced in 1950, was lengthened several times in the 1960s, up to twenty-six weeks in 1968. Constitutional Act No. 65/1965 Coll. (1965), § 155 (Czechoslovakia). Also introduced in 1968 was “further maternity leave” of one year, which was lengthened to two years in 1969. See Constitutional Act No. 153/1969 Coll. (1969) (Czechoslovakia).Google Scholar

¹¹³ These were especially generous from the 1960s onwards. “Financial help in motherhood” (peněžitá pomoc v mateřství) was paid during maternity leave. See Constitutional Act No. 88/1968 Coll. (1968), § 2(b) (Czechoslovakia). Furthermore, a “motherhood supplement” was paid during “further maternity leave” (mateřský příspěvek). See Constitutional Act No. 154/1969 Coll. (1969) (Czechoslovakia).Google Scholar

¹¹⁴ E.g., Constitutional Act No. 70/1958 Coll. (1958), § 8(1); Government Ordinance No. 92/1958 Coll., § 20.Google Scholar

¹¹⁵ For a transnational comparison, see, e.g., Sharon L. Wolchik, Ideology and Equality, 13 Comparative Political Studies 445 (1981). The transformative zeal of the socialist state fizzled out considerably as time progressed. See Havelková, supra note 51, at 44–48. Many émigrés saw Western Europe as decidedly backward when they arrived after leaving Czechoslovakia after 1968. Alena Wagnerová observed that it was “as in the developing world; as if someone brought us back twenty years, to the times of our mothers and grandmothers.” Alena Wagnerová, Laudatio Linda Šmausová – žena – clovek – vědkyně – přítelkyně: curiculum velice osobní, in Tvrdošíjnost myšLenky. Od Feministické Kriminologiek Teorii Genderu 15 (Libora Oates-Indruchová ed., 2011). The reverse was true when they returned to Czechoslovakia after 1989: “As if we somersaulted again back to the GDR, when we went there in late 1960s. Our [Eastern comparative] advance, that we were so proud of, ceased to exist.” Id. at 18–19.Google Scholar

¹¹⁶ In the West, this distinction has, of course, been problematized and challenged, notably by Judith Butler. See generally Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (1990). There is a difference between troubling a distinction–which has been intellectually, and arguably even politically, well-established and internalized in the West–and not having arrived at the distinction at all, as in the East. It is hard to deconstruct something that has not been constructed in the first place. Arguably, in many Western European countries, especially on the continent, it took a while for this intellectual shift to be judicially acknowledged as well. Susanne Baer notes that in Germany, “the interpretation of Article 3 [of the Basic Law] only moved away from simple biologism in the 1980s … .” Susanne Baer, The Basic Law at 60 - Equality and Difference: A Proposal for the Guest List to the Birthday Party, 11 German L.J. 67, 82 (2010).Google Scholar

¹¹⁷ While I would advocate gender-neutralization of parenting in the form of parental leave and parental benefits for both men and women, there is a case to be made for special protection of women during pregnancy, and breastfeeding shortly after birth. EU legislation has approached the issue in such a fashion. See Council Directive 1992/85, 1992 O.J. (L 348) (EC); see also Council Directive 1996/34, 1996 O.J. (L 145) (EC).Google Scholar

¹¹⁸ The Labor Code introduced a prohibition of night work, see Code, Labor, No. 65/1965, § 152, as well as a prohibition of certain types of work for all women. See also Code, Labor, No. 65/1965 § 150(2).Google Scholar

¹¹⁹ Havelková, supra note 51, at 43.Google Scholar

¹²⁰ Part-time work was almost non-existent during the period.Google Scholar

¹²¹ The generous provision of childcare, for instance, was clearly positive in helping mothers to work outside of home, and yet it did nothing to change the male-based employment model.Google Scholar

¹²² Labour Code Act No. 262/2006 Coll., § 238(1).Google Scholar

¹²³ Act No. 365/2011 Coll. amending 262/2006.Google Scholar

¹²⁴ In 1990, parental allowance was made available to caretaker fathers (Act No. 382/1990 Coll.), but the Labour Code only recognized parental leave in 2000 (Act No. 155/2000 Coll.). Thus, for a decade, a father could receive the benefit, but had no guarantee of workplace protection from dismissal during the period of care.Google Scholar

¹²⁵ This particular trap that respecting difference creates has not been unique to the East and has been noted by feminist scholars in the West. See, e.g., Martha L. Minow, Foreword: The Supreme Court, 1986 Term—Justice Engendered, 110 Harv. L. Rev. 10, 12–13 (1987); Christine A. Littleton, Reconstructing Sexual Equality, 75 Cal. L. Rev. 1279, passim (1987).Google Scholar

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¹²⁷ Radvanová, supra note 105, at 30 (emphasis added).Google Scholar

¹²⁸ The U.S. used the term “separate but equal” to justify discrimination of African Americans through segregation before the Brown v. Board of Education ruling. See Brown, 347 U.S. at 488.Google Scholar

¹²⁹ Alfred G. Meyer, Feminism, Socialism, and Nationalism in Eastern Europe, in Women, State, and Party in Eastern Europe 4, 23 (Sharon L. Wolchik & Alfred G. Meyer eds., 1985).Google Scholar

¹³⁰ In 1962, women on average earned sixty-four percent of men's wages, and in 1988, the proportion rose only to seventy-one percent. See Hana Hašková & Marta Vohlídalová, The Labour Market and Work-Life Balance in the Czech Republic in Historical Perspective, in Women and social citizenship in Czech society: continuity and change 46 (Hana Hašková & Zuzana Uhde eds., 2009). Although the man was not the sole breadwinner as he was in the West, he was still the main breadwinner in the family. See Jiřina šiklová, Are Women in Central and Eastern Europe Conservative?, in Gender Politics and Post-Communism: Reflections from Eastern Europe and the Former Soviet Union 75 (Nanette Funk & Magda Mueller eds., 1993).Google Scholar

¹³¹ Hilda Scott, writing in 1974, noted that “in agriculture, where 52 per cent of all workers are women, only 20 of the country's 5,800 farm cooperatives are headed by women,” and “only two of the more than three hundred district national health centers are directed by women, in spite of the “feminization” of medicine.” See Scott, Hilda, Does Socialism Liberate Women? Experiences from Eastern Europe 14 (1974).Google Scholar

¹³² Fodor observes, “[n]ot surprisingly, the functions women were supposed to fill were not only different but also inferior to those carried out by men.” Eva Fodor, Smiling Women and Fighting Men: The Gender of the Communist Subject in State Socialist Hungary, 16 Gender & Society 240, 258 (2002).Google Scholar

¹³³ The average proportion of women in the National Assembly was twenty-three percent—double the amount than before the Communists came to power. At the communal level, representative bodies consisted of an average of thirty percent women. See Jaroslava Bauerová & Eva Bártová, ProměNy ženy v RodinĚ, Práci a ve VeŘEjném Ž Ivotě (Transformations of Women in the Family, work and public life) 234–35 (1987). On the limited role of the legislature in actual decision-making, see Hana Havelková, Women In and After a “Classless” Society, in Women and Social Class - International Feminist Perspectives 69, 75 (Christine Zmroczek & Pat Mahony eds., 1999).Google Scholar

¹³⁴ During the entire period of forty-one years, only three women were either state or federal ministers. See Hana Havelková, Jako v loterii: politická reprezentace žen v ČR po roce 1989, in Mnohohlasem 25, 30 (H. Hašková, et al. eds., 2006). See also Scott, supra note 131, at 14.Google Scholar

¹³⁵ The former should trigger suspicion of direct discrimination and the latter of indirect discrimination.Google Scholar

¹³⁶ Rozsudek Obvodního soudu pro Prahu 1 ze dne 14.03.2005 [Judgment of the District Court for Prague 1 of Mar. 3, 2005], sp.zn 23 C 11/2003-70 (emphasis added).Google Scholar

¹³⁷ Similarly to the previously mentioned decision, see also Rozsudek Okresního soudu v Blansku ze dne 30.06.2015 [Judgment of the District Court in Blansko of June 30, 2015], sp.zn 78EC 1342/2011 –279.Google Scholar