The first judgement, Napotnik v. Romania, concerned the recalling of a female diplomat from a posting abroad after she announced her second pregnancy. In this highly criticized judgement, the Court did not find discrimination as it considered that the early termination of Ms Napotnik’s posting was justified by the need to offer timely consular assistance to Romanians abroad. The second judgement Jurčić v. Croatia regarded the refusal of an employment-related benefit to a pregnant woman due to the suspicion that her employment contract had been fictitious since it was concluded 10-days after she underwent in vitro fertilization. In contrast with Napotnik, in this acclaimed judgment, the Court found that such refusal was based on harmful stereotypes about pregnant women’s “inability” to work and was hence discriminatory and unjustified. Read comparatively, the two judgements show serious inconsistencies in the Court’s reasoning, a blog post being too short to detail on them. However, the reasoning in Jurčić is built on exactly the same generally principles developed in Napotnik which are likely to be crucial in deciding future pregnancy cases by the ECtHR.

Perhaps the most important principle spelled out by the Court in Napotnik (and reiterated in Jurčić) is that pregnancy discrimination amounts to discrimination based on sex since “only women can be treated differently on grounds of pregnancy” suffering disadvantage due to stereotypes related to their condition. This holding is very important since in ECtHR’s case law “sex” together with other grounds such as “race” or “sexual orientation” are considered “suspect grounds” that require the existence of “very weighty reasons” to justify a difference in treatment. Said in other words, when a “suspect ground” is at stake, states have to show they had no other alternative in reaching their “legitimate aims” than through a difference of treatment based on that suspect ground. In this type of cases, the margin of appreciation of states in fulfilling their obligations under the Convention is narrow, states coming under the close scrutiny of the ECtHR.

By referring to the case law of the Court of Justice of the European Union, the Court has further inferred another important principle, namely that no comparator is needed in cases of pregnancy discrimination since pregnancy is a condition uniquely related to the female sex. This means that, unlike US courts for example, the ECtHR does not find it necessary to inquire whether pregnant women are treated less favorably than groups considered to be in a “similar” situation like ill or disabled men; rather the ECtHR inquires whether or not pregnant women were treated unfavorably on account of their pregnancy. This approach is significant as it enables the Court to uphold special measures to protect pregnant women (such as leave of absence for medical checkups), independent of the existence of such measures for other groups. This idea is further strengthened by the Court’s explicit acknowledgement (in both cases) of the principle that pregnancy needs special protection and of the fact that the Convention allows “treating groups differently in order to correct “factual inequalities” so to achieve substantive equality.

The Court’s explicit spelling out of these principles is important. However, a question remains about their application to concrete facts and the leeway of the Court in reaching different outcomes when pregnancy discrimination occurs as was the case in Napotnik and Jurčić. Since Ms Napotnik was still working for the Romanian Ministry of Foreign Affairs as a diplomat when the judgement was delivered, probably she was not in a position to ask for a referral of her case to the Grand Chamber. The Croatian Government in Jurčić can still ask for a referral until 4 May 2021. Such eventual referral or other future cases would be a good opportunity for the Court to solidify the protection of pregnant women in the ECHR’s framework.

The low turnout came as a surprise. A 2017 study of the Pew Research Center found that 85% of Romanians believed that homosexuality should not be accepted by society and another large majority showed strong support for traditional gender roles. Moreover, all but one religious organization in Romania promoted the referendum, and all but one of the political parties represented in the Parliament asked their electorate to go to vote. Additionally, not long before the referendum, the Government issued an ordinance to organize the referendum over two days to ensure sufficient turnout.

One of the explanations for the low turnout is the fact that many voices, mainly from civil society, urged the people to boycott the referendum and not go to vote. The motivation behind these calls was the idea that human rights are nonnegotiable and should not be subject to a popular vote. However, even if some people boycotted the referendum in support of human rights, it would be naive to believe that despite the statistics that place Romania among the most conservative countries in Europe, the low turnout was primarily due to Romanians’ support for equal rights.

A large number of people boycotted the referendum for reasons other than equality concerns. One of these reasons is the antipathy towards the ruling Social Democratic Party that tried to use this referendum to derail people’s attention from its attempts to weaken the country’s anti-corruption framework. Another reason is that the referendum was perceived as a way of distancing Romania from the EU, in the context in which, just a few months before, the Court of Justice of the EU had ruled that same-sex couples married abroad have the right to freely reside in Romania. To these, one can add the belief that the Government could have directed the 40 million euro that was the cost of the referendum to a better cause or the fact that in a majoritarian Christian Orthodox country, where the Civil Code already bans same-sex marriage and the legislation does not grant any form of legal protection to LGBT couples, people did not perceive the traditional family and traditional gender roles to be in any real danger.

When Ireland held its referendum on same-sex marriage commentators warned that referendums are “not the best way to make decisions” and that the Irish referendum might “set a dangerous precedent for other nations where public opinion might not be so tolerant”. Indeed, the Irish referendum set a dangerous precedent for Romania. Although the referendum was declared invalid, this happened due to the cumulative effect of different political and social factors, and not necessarily because Romanians are strong supporters of equality. Moreover, the Coalition for Family, the group that initiated this referendum, announced that it would continue its fight to promote traditional values in Romania. Other topics that the Coalition could promote for a referendum include, as in the case of Ireland, abortion. Therefore, a serious conversation should be had on whether human rights should ever be subject to a popular vote. Referendums, after all, are meant to strengthen democracy and not to undermine it by restricting rights that are unpopular.

The process of constitutional review started in October 2015 when the CfF, a grouping of conservative NGOs in Romania, launched a citizens’ initiative to define marriage in heterosexual terms in the Constitution. By the end of April 2016, the Coalition succeeded to gather, with the support of the Orthodox Church, nearly 3 million signatures in support of this initiative. The initiative managed to meet all the legal requirements for validity, including two constitutionality checks by the Constitutional Court and a vote of over 2/3 in the Parliament. There is just a successful referendum missing for the initiative to become law.

The referendum comes just a few months after the CJEU decided in Coman and Others that same-sex couples should be able to reside freely in Romania. Its purpose is to counter the CJEU judgement and block any other advancement of LGBTQ+ rights in the country so that it would preserve Romania’s “traditional values”.

While the discourse around the referendum is built on nationalist ideas, the CfF has serious support from external partners. These include ADF International and Liberty Council (LC), two conservative groups from the US considered hate groups by the Southern Poverty Law Center (see here and here). The LC for example sent an amicus brief to the Constitutional Court arguing that “engaging in homosexual conduct is dangerous” and that same-sex unions create “irresponsible and unhealthy people”. The organisation also brought Kim Davis (the US clerk who refused to issue marriage licenses to same-sex couples after the US Supreme Court legalized same-sex marriage) to Romania to convince the locals about the evils of same-sex marriage.

In addition, the referendum is portrayed as a tool to counter “gender ideology”. In the view of the supporters of the referendum, this is a system of beliefs according to which gender is a socially constructed concept and men and women should act against their God-given roles in family and society. Thus, any attempts to change gender roles are seen as threatening the “natural” order of things. In a recent press conference, the spokesperson of the CfF stated that marriage has to be defined as the union between a man and a woman in the constitutional text, so that gender stereotypes would be protected by the Constitution. In this way, the CfF hopes to stop any legislation that tries to bring about gender equality through challenging archaic ideas about the roles of women and men. This includes for example the Istanbul Convention aimed at addressing violence against women. The Convention created a real hysteria among conservatives in Eastern Europe for defining gender as socially constructed and obliging states to eliminate the stereotypes that lie at the root of gender based violence. Furthermore, the agenda of CfF includes restricting reproductive rights and encouraging women to become mothers. Thus, the referendum is not only about the support for LGBTQ+ rights, but also about women’s rights and gender equality more broadly.

This case should herald more debate about whether human rights should be subject to popular referendums. It is true that the recent Irish referendums that legalized abortion and same-sex marriage were celebrated by human rights activists. However, Romania is one of the most homophobic and least gender equal countries in the European Union and there is little chance that the people will vote against the constitutional change. The only hope for the opponents of the review is that the 30% quorum of participation to the referendum will not be met. Many of them already announced that they will boycott the referendum and will not go to vote.  The rationale behind the boycott is not necessarily the refusal to contribute to meeting the participation quorum, but the fact that as some commentators from other countries have put it, human rights should not be subject to the popular vote.

UPDATE: On September 18, 2018, shortly after the publication of this blog post, the Romanian Government decided to hold the referendum over two days, on October 6 and 7, to make sure that the 30% quorum of participation for the validity of the referendum will be met. When it made this announcement, the Romanian PM insisted that “the referendum is not one against sexual minorities” and that political parties should have a clear position on the proposed constitutional review and not encourage citizens not to vote.

 The case before the CCR regards the constitutionality of paragraphs 2 and 4 of Article 277 of the Romanian Civil Code. These state that same-sex marriages concluded abroad are not recognized in Romania but that, in spite of this, the provisions on the freedom of movement of EU citizens still apply. On July 18, Valer Dorneanu, the president of the CCR, announced that in the CCR’s view, these provisions “are constitutional to the extent that recognize the right to freedom of movement and residence on the Romanian territory”. He added that the CCR reached this conclusion “in the spirit of the CJEU judgement” and that the Court “did not rule on the recognition of [same-sex] marriage”. Thus, the Court made it clear that in its view, same-sex couples in Romania should not have more rights than strictly required by the CJEU.

The reasoning of the Court in this decision should be available in the forthcoming weeks. Until then, it is worth noting that this outcome is not surprising. On the one hand, the CCR could not have bypassed the judgement of the CJEU. On the other hand, the CCR is not known as a champion of equal rights. Thus, it was an easy guess that the Court would not give same-sex couples rights beyond the minimum required by the CJEU, although under its mandate, it could have done so.

The CCR was confronted with the question of sexual orientation twice before the Coman case.

The first time was in 1994, when homosexuality was still criminalized in Romania. At that time, in Decision 81/1994, the CCR, due to Romania’s accession to the European Convention on Human Rights, held that homosexual acts should be criminalized only if they take place in “public” or create “public scandal”. However, since “public” and “public scandal” could have been interpreted broadly, the decision of the CCR did not make any difference in practice.

The second time was in 2016, when the Court had to rule on the constitutionality of a popular initiative meant to define family in the constitutional text as the union between a man and a woman. Among others, the CCR had to decide whether the proposed constitutional amendment would suppress “citizens’ fundamental rights and freedoms”, in which case the amendment would have been prohibited under Article 152 (2) of the Constitution. In Decision 580/2016, the Court concluded that defining marriage in heterosexual terms in the constitutional text did not suppress any fundamental rights or freedoms and it gave the green light to the proposed amendment. The decision was criticized in harsh terms by constitutional law specialists because of its content and poor drafting. The substance of the proposal to review the constitution was analyzed in just one paragraph (paragraph 42) and only from the perspective of the right to family (based on marriage bonds), although the suppression of more fundamental rights should have been analyzed.

ACCEPT and MozaiQ, Romania’s main LGBTQ+ organizations, both welcomed the decision of the CCR in the Coman case (here and here), but emphasized its limitations and the fact that same-sex couples need legal recognition beyond the rights to freedom of movement and residence. It is precisely because of these limitations that one can conclude that the CCR did nothing else but pay lip service to the CJEU. The CCR never referred to the CJEU for a preliminary ruling before the Coman case. Such referral gave the CCR the opportunity to absolve itself of the responsibility and signal once again to the Romanian society that LGBTQ+ rights are nothing else but an imposition from the EU.

[Update: On 27 September 2018, the Romanian Constitutional Court released the full reasoning of its decision in the Coman case. The press release of the CCR and the declarations of its president in July, when the holding of the Court was first announced, implied that the Court refused to give more rights to same-sex couples married abroad than strictly required by the CJEU (i.e. the rights to freely move and reside in Romania). Despite this, the Court surprised human rights activists when it published its full decision. The Court concluded that the family life of same-sex couples is protected by the Constitution and that LGBT people living in a stable relationship should be granted, in time, “the legal […] recognition of their rights and obligations” (paragraph 41 of Decision 534/2018). Many see this statement of the Court as imposing an obligation to recognise civil partnerships in Romania.]