Cultural Diversity and Protection of Gender Identity

This paper proposes a critical assessment of the idea of ‘open society’ focusing on issues of gender diversity and culture-related rights in the European context. It aims at analyzing the European legal standards on the protection of gender identities as associated to economic, social and cultural rights narratives and their justiciability along the European Court of Human Rights and the EU Court of Justice interpretative approaches. The conundrum of the justification test for limiting rights before the two Courts reveals that the interpretative toolbox of European judges requires further discussions on the movable boundaries and counterbalances for the protection of cross-cultural diversity vs. gender discrimination.

Gender issues and human rights discourses postulate several cultural, social and political justifications across normative divides and the recourse to different theoretical frameworks for the construction of non-discrimination and equality models guaranteed by European and national courts. Recognising differences while protecting identities in everyday practice of human rights raises irreparable conflicts between multiple doctrines, aptitudes and experiences of gender (in)equality and ‘equal justice’ requiring continuous efforts of reinterpretation and reform.

Gendered human rights narratives in Europe eventually show the internal contradictions of the concept of ‘open society’ yet challenged by external ‘cultural’ patterns: still the protection against discriminatory practices occurring within or beyond European frontiers often comes with the recognition of gender-oriented normative traditions as self-contained systems of values eventually conflicting with the basic tenets of a pluralistic open society.