Gender and Diversity Studies

Ingrid Jungwirth Carola Bauschke-Urban (eds.)

# Gender and Diversity Studies European Perspectives

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## Content

the trajectory of Russian gender studies ................................................ 131

From Discovery to Politicization:

## *Ilse Lenz*

## Foreword: Diversity and Transnational Exchange

 How can diversity studies develop its own reflexive diversity, and its own vivid internal and international exchanges? There is a trend towards 'diversity speech' in public which tends to repeat ideas and formulas along the same lines of diversity and economic efficiency: the same people in diverse locations circulating the same concepts.

 In contrast, this book about *Gender and Diversity Studies in European Perspectives* shows the potential and meaning of fresh transnational approaches: it showcases process perspectives on 'diversity on the move' – particularly relevant since the EU legally incorporated gender equality and antidiscrimination into its policies, which has stimulated diversity research and practice. The book reflects these processes from both inside the EU and outside it, creating a conversation about gender equality and anti-discrimination between Germany, the United Kingdom, Turkey, Tunisia and Russia. Thus, perspectives on EU Gender Equality Policies in times of crisis are exchanged. The section on *Gender and Diversity Studies: Concepts and Methods* is especially promising for exchange and mutual conceptual development in these fields.

 *Gender and Diversity Studies in European Perspectives* also focuses on global power relationships and the processes of drawing boundaries around 'fortress EU' in the entangled developments between, for example, Europe and North Africa. External boundaries are being enforced in these regions at the same time as gender equality and anti-discrimination policies are being promoted in the European Union. In order to be inclusive, the discussion on diversity must analyse these power relations and their shifts.

 What would transnational and interdisciplinary gender and diversity studies look like? They would not be limited to an assemblage of national reports or speakers from the Global North. Rather, they would include diverse speakers from diverse regions, reflect on power relationships as well as shared goals of gender/intersectional justice, and promote intensive exchange and conversation.

 These exchanges and interconnections are especially important for students. This book can be widely used for teaching on both disciplinary and interdisciplinary courses. It covers the fields of *Gender and Diversity Studies: practices, methods and concepts*, *Equal Opportunities and Human Rights, and Changing Inequalities: work and organizations*. It will be relevant not only for diversity and gender studies, but for legal and labour studies as well.

 This volume is so promising for diversity studies, reflecting diversity and its changing contexts – I am really looking forward to reading and discussing it!

## *Ingrid Jungwirth*

#### Introduction: Gender and Diversity Studies ‒ European perspectives

 Gender and diversity studies as a developing field of research is approached in this volume by drawing a connection to a broader political context, and by arguing that the process of Europeanization, and particularly its equal opportunity policies, have also contributed to the formation of gender and diversity studies. In this book we emphasize the link between equal opportunity policies and the development of an academic field of gender and diversity studies. The starting point for our textbook is the implementation of anti-discrimination laws and policies promoted by the European Union on the basis of treaties and directives binding on the member states. With the Amsterdam treaty of 1997, gender mainstreaming became obligatory and EU-directives (2000 to 2004) required the integration of anti-discrimination principles and activities by national law. These legally binding conditions have had an impact on theoretical, methodological and practical challenges faced by gender and diversity studies. We argue that universities and the sciences have had to incorporate these requirements into the curricula in research and teaching to align with the objectives of anti-discrimination and gender mainstreaming. Consequently, the book examines the current state of gender and diversity studies taking into account that the path to establishing gender and diversity studies at universities and in research has been paved by these policies – be it by the establishment of research issues or be it by the determination of equal opportunity requirements for the organization of research. Roughly 30 years after the definition of 'gender mainstreaming', by the EU-commission in 1988, may be a good point in time for such an assessment.

 The intention of this book is to present a variety of approaches to gender and diversity studies in different regions in Europe as an important basis for the future development of the field. Starting with a German-Dutch crossborder cooperation, we extended the scope to other parts of Europe and beyond. Dealing with rights has two sides to it: on the one side, a homogenization is pursued including, in the case of the EU, its members to equal opportunity policies and anti-discrimination law. On the other side, these policies

 and laws are exclusive to non-members. Put differently, while certain rights and antidiscrimination policies are strengthened within the EU and internal borders between member states are successively being dissolved, external borders are enforced – be it South European /African or East European. Taking processes of European homogenization into consideration: What does this mean for the definition of 'European perspectives' on gender and diversity? Which regional inequalities are reproduced and what kind of impact do these have on European gender and diversity studies? How inclusive is a European gender and diversity discussion itself?

 The book includes articles from different regions in Europe and beyond in the fields of gender and diversity studies. We take a critical perspective on the effects of the integration policy of the EU and the exclusions it produces. The book is conceptualized as a textbook for students of gender and diversity studies, introducing issues and objectives as well as theoretical approaches, methods and recent research findings.

## **1 Gender and Diversity Studies**

 Diversity studies as a developing field has been defined in connection to the concept of 'difference' taking up political discourses that were initiated decades ago by social movements, such as the women's movements, gay, lesbian and queer, anti-racism as well as disability rights movements. 'Difference' is brought up and emphasized in political discourses and theory formation in the context of globalization processes and increased societal differentiation, particularly in post-industrial economies. The recognition of difference is a central focus, referring to social categories, for example, those that are mentioned in the recently implemented laws such as the German General Act on Equal Treatment (*Allgemeines Gleichbehandlungsgesetz*) include gender, race, ethnicity, sexuality, disability, age, religion and beliefs. Building up on EU directives, nation states that are members of the European Union were to come up with laws that address anti-discrimination more concretely and as such beyond existing laws in the member states which included equal rights in a general sense, an example being the Basic Law (*Grundgesetz*) in Germany. One of the core issues promoted in the context of the emerging field of diversity studies are claims to recognize differences, plurality, inclusion, amongst others, and the challenging of norms and norm setting, for example, amongst the dominant groups in organizations (Krell, Riedmüller, Sieben and Vinz 2006:8).

 In this regard, diversity studies link to human rights discourses that are identified in the context of globalization and migration studies, often opposing nationalist or re-nationalization tendencies and political agendas (Steger 2017;

 Portes and DeWind 2007; Castles and Miller 2009; Pries 2004). The public discourse on diversity seems to be connected to the normative claim that "'difference' is OK" (Vertovec 2015:3), in the sense of difference from the dominant norm. One of the observations that we could locate, while writing this book, is that the ideal of diversity as being different from a dominant norm, seems to have gained legitimacy in the public discourse in many societies.

 Diversity studies as a scientific field can be distinguished from the public discourse. From the perspective of the social sciences, a distance between scientific concepts and analysis, on the one hand, and everyday experience of diversity and/or difference, on the other hand, is required, in order to not only reproduce commonplace knowledge – what we have known already. Diversity studies needs to come up with scientific concepts and theoretical approaches that are specific and can be examined through empirical research. This principle of the social sciences is put forward by Brubaker in an investigation among social sciences and humanities scholars carried through by Vertovec (2015:4). Other positions and notions of diversity from these interviews, summarized by Vertovec, include the expectation that new opportunities are created to deal with difference in more advanced ways (according to Brubaker, Landau and Wimmer, cited in Vertovec 2015:9) and their social organization (according to Appadurai, cited in Vertovec 2015:9) as well as with their interrelations, comprise intersectionality and multidimensionality in particular (Glick-Schiller, Beck, Eriksen and Eade, cited in Vertovec 2015:9). Moreover, issues of differentiation as a core topic of the social sciences can be addressed (according to Brubaker and Koenig, cited in Vertovec 2015:9).

 In an attempt to define topics in diversity studies, Vertovec includes topics of social differentiation and questions on how "categories of difference" are constructed and reproduced (ibid.:10), distinguishing these processes from the study of "complex social environments" (ibid.) in which these processes evolve. In the social sciences, several theoretical approaches have been developed to deal with these processes of reproduction of 'differences', which have been analyzed as 'social inequalities' in sociology. This leads us to social inequality as a further central concept of diversity in diversity studies which refers to the systematic access (or lack of access) to socially validated assets and resources, based on belonging to a social group determined by categorizations of gender, class, ethnicity or race, sexuality, religion or disability. Diversity studies can draw on these theoretical foundations for the design and realization of empirical research and successive theory building, which should give further insights into how these processes of reproducing social inequalities happen in an increasingly complex and faster changing social world. Moreover, the question of the interrelation between the reproduction of social inequalities and societal changes leading to an increased differentiation can be addressed.

 Krell et al. (2006) emphasize the significance of gender studies when defining the scope of diversity studies by linking gender studies and diversity studies. Gender studies has contributed influential theoretical approaches (see Bührmann 2015), for example, the approach of 'doing gender' by West and Zimmerman (1987) that explains the relevance of the interactional level for the reproduction of 'differences' or inequalities of gender in relation to the level of societal institutions. This approach has been extended to other social categories such as the construction of race, ethnicity and class under the term of 'doing difference' (West and Fenstermaker 1995). Similarly, migration and racism studies have come up with concepts to analyze the construction of ethnicity and race in interactions in relation to societal institutions (for example, Omi and Winant 1994; Brubaker 2004; Miles and Brown 2008; Wimmer 2013). In disability studies the central social model of disability has been coined (Oliver 1990; Bury 1996; Barnes 1997). This research and theory development is built on theoretical approaches in sociology which focus specifically on interactions and everyday life as a most relevant site in which society and social inequalities are reproduced through the interrelatedness of social actions, social institutions and social structures (Goffman 1959; Berger and Luckmann 1966; Garfinkel 1967)1 . Class, as a social category of achieved inequality ranges on a different level than the categories of ascribed inequalities, for example, gender. The extent to which the interactional level is significant in the reproduction of social inequality based on social origin related to class or social milieu has been shown most prominently by Bourdieu's study *Distinction* (1979/1984) and has engendered a broad range of research. Consequently, we can point out three levels of interest for diversity studies – structures, institutions and interactions, or, in reference to Vertovec' formulation: configurations, representations and 'encounters' (2015:17).

 What seems to come increasingly to the forefront in the context of emerging diversity studies is the intersectionality and multidimensionality of social relations and social inequalities (Lutz 2015; Faist 2015). The focus on one social category alone and, specifically, determining hierarchies between dimensions of social inequality is rejected under the umbrella of diversity studies (Krell et al. 2006:13; Vertovec 2015:10). From a sociological perspective, we address differences and diversity as dimensions of social inequality, since it is a systematic access or lack of access to opportunities related to belonging to social groups that is one of the core interests of research and theory formation in sociology and several other social sciences. Moreover, these inequalities are in sharp contrast to features of societies that are characterized by increasing functional dif-

1 For an analysis of public discourse and social movements discourse on inequalities based on the construction of gender and race since the 1950s in the US and how this interrelates with the social science discourse, see Jungwirth (2007).

 ferentiation and individualization. Consequently, further insights in the continuing co-existence of functional differentiation, on the one hand, and the significance of membership in social groups in the reproduction of society, on the other, are crucial. The focus on organizations in research and publications of diversity studies is based on the relevance and pivotal contribution of organizations in highly differentiated societies (see the contribution by Jungwirth as well as the contributions by Vader and Showunmi in this volume).

## **2 Interdisciplinarity/Transdisciplinarity**

 Diversity studies, similar to gender studies, claims to pursue an approach that goes beyond disciplinary boundaries and to integrate the perspectives of different disciplines with regard to methodologies to address the identified issues and research topics. Krell et al. (2006:13f.) argue for a 'multi-disciplinary' approach under the roof of diversity studies, explicitly naming business administration, as a discipline in which diversity management has been developed, along with educational science, political science and law – or 'diversity politics', ethnology and anthropology, womens' and gender studies, migration studies, health studies and gerontology. Vertovec goes beyond this position by determining diversity studies as 'interdisciplinary' in the legacy of migration studies, gender studies and sexuality studies (Vertovec 2015:9f.), while relating diversity studies to the social sciences and the humanities. The argument for an interdisciplinary approach is that we can gain further insights about questions raised, if findings from different disciplines are 'integrated' and linked to each other, for example, about gender relations in a specific neighbourhood or the relations of dominant and dominated groups in certain organizations (Krell et al. 2006:14; Vertovec 2015:9f.). Consequently, an interdisciplinary approach requires that the specificities of each research project have to be defined distinctly, including different disciplinary approaches, and that research fields link these different disciplinary approaches.

 Beyond this position, gender studies have been defined as interdisciplinary and transdisciplinary with a critical stance towards disciplines and modes of knowledge formation within the context of university. Hark and Wetterer (2010:280) point out the extent to which gender studies represent both approaches, on the one hand, challenging existing orders of knowledge and the means for their formation in academia, and the possibility of being co-opted by an economic usability logic and requirements for flexibility, on the other. In relation to this, the concept of interdisciplinarity has been identified as a buzz word that is often used for funding applications or the evaluation of study programs in the context of the university reforms in the EU members states, also

 known as 'Bologna reforms' since the new millennium. Working as a 'magical sign' that is not too clearly determined, it may represent even two opposing approaches (ibid.). According to Hark and Wetterer, from the perspective of the history of science, these endeavors can be seen as an attempt to define an 'uncharted space' in academia and determine a border line in relation to other disciplines (ibid.:284f.). An interdisciplinary or transdisciplinary approach in gender and diversity studies, can create the space for developing new concepts and theoretical approaches. Moreover, the concept of linking not only disciplines but sciences and every day life experiences and politics in transdisciplinary research, is presented in this book (see the contribution by Vinz).

 All in all, the question about the extent of gender and diversity studies serving as critical science and the provisions it offers, still remains, which promotes a critical reflection of knowledge production in academia. At the same time, the aim of achieving more encompassing insights in research through an interdisciplinary or transdisciplinary approach is pertinent to gender and diversity studies. We argue that a critical stance against an economic usability logic and flexibility claims can be provided by taking into account societal power relations. In order to include these in the research in gender and diversity studies, resorting to the sociology of social inequality and sociology of organizations in which core concepts of analysis have been coined for the issues and questions raised in gender and diversity studies would be an important contribution. Moreover, social theories such as the ones named above can build a theoretical foundation for gender and diversity studies, in an attempt to include the examination of power relations and to come up with explanations for experiences of difference and diversity on these grounds (see the contribution by Jungwirth as well as the contributions by Vader and by Showunmi in this volume).

## **3 Gender and Diversity Studies as a Profession**

 The question of the extent to which gender and diversity studies operate as a profession is linked to the establishment of a field of research and teaching or of a discipline. This issue is raised by gender studies which already has undergone a process of establishment in academia to a certain level. The ATGENDER network, which was founded by three key players in gender studies in Europe, WISE, AOIFE and ATHENA in 2009, currently counts 51 members of gender studies institutes and centers located at universities all over European member states.2 Diversity studies has not been established in the same manner but has of-

 2 https://atgender.eu/about/background/, retrieved February 28, 2019. It has to be mentioned that only a certain number of gender study institutes and gender study programmes are organized in this network. This number can be estimated to be much higher, if we take only

 ten emerged within the context of gender studies as gender and diversity studies. More than gender studies, diversity studies has been linked to an orientation of application by some (Krell et al. 2006:14), particularly if one takes into account issues of diversity management, which have been developed in the context of organization studies and business administration (e.g. Loden and Rosener 1991; Cox and Blake 1991; Kirton and Greene 2010). In education sciences, in addition to approaches of diversity and inclusion (e.g. Terzi 2005; Gonzalez-Mena and Bhavnagri 2000; Prengel 2010), diversity trainings have evolved (Adams and Bell 2016; Czollek, Perko and Weinbach 2012; see also Weinbach's as well as Schwärzer-Dutta's contributions in this volume). Consequently, on the grounds of new legal requirements in EU member states, on the one hand, and emerging concepts for organization analysis, trainings and other instruments to enable participation of diverse members of an organization, on the other, have led to developments towards a research and teaching field of gender and diversity studies as a profession.

 With the focus on gender studies, an encompassing comparative study was done to analyze the institutionalization of womens's studies in Europe in nine countries, as well as on the careers of women's and gender studies graduates' (Griffin 2005; 2010). Griffin points out two characteristics of the professionalization of gender studies (2010:247), firstly, gender studies contents have been spread within academia since contents of gender studies have been included in study programmes in social sciences and the humanities and secondly, pedagogical innovations, such as participatory teaching, which is related to women's studies by Griffin, are meanwhile taken up in other disciplines to a certain extent (ibid.). Moreover, a widespread infrastructure of institutes, publication opportunities and the establishment of professional associations, are seen to be indicators for professionalization (ibid.).

 According to this European study in nine countries the fields of work in which the graduates of gender studies are employed are research and education, equal opportunity offices in public services, civil society organizations, "journalism and information" and the social and health sector (Silius 2005: 118). The findings revealed the employment of women's studies graduates in jobs as women's officer or equality officer, work in rape crisis centers, working with women refugees as well as for women's helplines (Griffin 2010:247). Research and education is aspired by a high share of the graduates (ibid.:119). This finding is confirmed by a study on the work situation of graduates of gender studies at Humboldt-Universität zu Berlin, based on a complete survey

 the number of the previously active ATHENA network into account which comprised more than 100 institutional members (ibid.). The diminishing of the number of independent gender studies institutes and centers can also be the result of a successful institutionalization in the form of a study programme integrated in an institution.

 of the graduates. According to this survey, one third of the graduates are working in the field of research (Kriszio 2012:32). The study analyzed media and culture and the private sector to be the other two fields, in addition to research. Silius found that, depending on the level of institutionalization of equal opportunity measures in the different countries, the number of jobs in a "strictly defined" equal opportunities sector was comparatively low (2005:122). The encompassing European study showed that employment opportunities, for gender study graduates were comparable or better than those for other social science and humanities graduates (Griffin 2010:246). This finding was confirmed in the research on the gender studies graduates from Humboldt-Universität zu Berlin, according to which two thirds were employed, self-employed or did an internship (Kriszio 2012:18), while others continued with further study programmes (15%) or did their PhD (22%) or fulfilled caring duties (5%). When the survey was carried through 6.8% of the graduates were unemployed (ibid.).

 To sum up, the establishment of binding guidelines for EU member states to establish effective anti-discrimination and equal opportunities laws and policies determine new requirements. Gender and diversity studies can form the foundation for training of these newly required professionals. This includes certain competencies, which have been named by women's and gender studies' graduates in the European study (Silius 2005:127), such as critical thinking, analytical abilities and innovative working methods, specific gender expertise and analytical tools to work with "diversity, power and differences" (ibid.). The graduates also referred to "practical tools concerning the work place and work place culture" including "working in solidarity with other women" (ibid.). Moreover, gender studies endowed the graduates with a higher self-confidence (ibid.). These skills can certainly be acquired in other study progammes, too. But the specific issues, theories and methods of gender and diversity studies can be regarded as a foundation on which competencies in dealing with an increasing complex social world and world of labor can be developed.

## **4 EU Policies: between economization, demography and equal opportunities**

 Equal opportunities policies of the European Union have contributed to the implementation of specific national laws in the member states with an aim of determining more concretely the legal conditions for the realization of equal opportunities (see the contribution by Liebscher in this volume). At the same time, this approach towards equal opportunities is closely linked to the European Union's aim of strengthening the economy of EU member states through trade and, amongst other, the opportunity of free movement for EU-citizens.

 The increase in the number of women in the workforce, as well as minority group members, is seen to be one prerequisite to this end. Moreover, demographic change poses a sufficiently present and threatening development for many EU member states such that women's and minority group members' access to the labor force is at stake. As a consequence, equal opportunity and human rights endeavors in the European Union go together – or rather *only* go together, as some authors have pointed out – with economic reasoning (see the contribution by Streckeisen and the contribution by Ahrens and van der Vleuten in this volume).

 For example, findings of the encompassing Europe wide research on gender equality policies, QUING, reveals that policies that are based on a solely economic argumentation do not only limit but may even deteriorate gender equality policies (Verloo 2010). If equal opportunity policies related to gender are framed only as an issue of women's participation in the labour market or with regard to labour power shortage and economic disadvantages that follow, dominant norms and ideals of gender and gender relations are not challenged (Verloo 2010:54ff.). These policies do not sufficiently question a stereotypical division of paid and unpaid work between men and women (or genders) and gender based power relations. On the contrary, in certain states of the EU, gender policies were linked to political agendas, promoting nationalistic politics by connecting gender equality policies to demographic change and family related policies (ibid.:62ff.).

 The orientation of EU policies towards market requirements is challenged in a more general sense, for example by Streeck (2015). He argues that, within the context of global developments through which the nation state and capitalist economies are linked differently, the EU – specifically the European Monetary Union (EMU) – works towards strengthening the market orientation of nation states. While the (former) type of the 'debt state' is seen to be based on conflicting interests between the constituency (*Staatsvolk*) and the creditors of a national economy (*Marktvolk*), in the emerging 'consolidation state' (ibid.:11), the conviction is that the commercial debts have priority over other debts of the nation state and the welfare state towards their citizens. Streeck is describing a worldwide development in wealthy capitalist economies and nation states. In the European Union, he argues, the EMU is most influential in shaping this "political-economic regime" of the "consolidation state" (ibid.:16). This finally leads to "a far-reaching rationalization, or 'economization', of politics and society" in Europe (ibid.:20).

 These tendencies of economization of politics and society as well as the described co-optation of gender related equal opportunity policies through nationalist political agendas in the context of the European Union stand in contrast to the ideals and values that are often related to Europe. Ideals of the

 human rights and equal opportunities policies as well as democracy are, consequently, not the only discourse of Europe. Instead, the two-sidedness of the discourse of Europe is pointed out by several authors. For example, Griffin and Braidotti (2002) refer to Europe's history of colonialism and fascism. Similarly, women and migrants are, according to Griffin and Braidotti (2002: 10), "an antidote to the notion of democracy".

 Against this background, what can be 'European perspectives' of gender and diversity studies? Griffin and Braidotti emphatically argue that, in the wake of Europeanization in the sense of post-nationalism (ibid.:12), gender studies can work as a model for the process of 'dis-identification' from dominant and essentialist forms of identification with the nation and a step towards a more process-related as well as in-between conception of identification that would be necessary. Moreover, 'European perspectives' refer to geographical locatedness, taking into account a dynamic conception of Europe (Griffin and Braidotti 2002:9), characterized by 'shifting boundaries', including and excluding geopolitical spaces and peoples at its borders. Different from other continents, Europe is characterized by diversity with regard to the spoken languages and cultures (ibid.:10). Similarly, Bauman points out an open and dynamic character of 'Europe' (Bauman 2004:129). A combination of values of rationality, justice and democracy, can be seen to be 'European', Bauman insists.

 Taking critical perspectives on values such as rationality into account, rationality would include reflexivity of its geographical and historical location, while claiming universalism and incorporating all humans in these values (ibid.:125). Consequently, justifying actions "in the court of reason" (ibid.: 126) as well as "criticism and disaffection" (ibid.) are put forward as important in this regard. Justice and the continuous endeavor towards a just society refers to guarding a "common good" instead of "egoistic self-promotion" (ibid.:127), being the foundation for solidarity and society (ibid.). Democracy should enable political participation of different groups. At the same time, the contribution of citizens is a necessary requirement which can be ensured through granting citizens individual liberty and responsibility (ibid.:129). Based on these values, Bauman argues that it would be the "function" of European institutions to work against the undermining of the political power of nation states through economic actors: "arresting the capital assets that have escaped from the cages of the nation state inside the continental stockade and keep it there" (ibid.:136).

 Finally, we focus on the link between anti-discrimination, equal opportunities policies and the institutions of the European Union which have furthered and supported these policies. At the same time, we investigate the consequences of these policies. This requires self-reflexivity with regard to the limits and boundaries that are drawn through these policies as well as to the consequences of politics that are not necessarily intended, emerging when several actors are Introduction 19

 interacting on an increasingly global scale. In this context, gender and diversity studies can provide theoretical and methodological approaches for a critical investigation of the production of knowledge and its conditions.

## **5 The Contributions**

 The book examines the development of gender and diversity studies in the fields of equal opportunities and human rights (1), practices, concepts and methods of gender and diversity studies (2) and changing social inequalities: work and organizations (3). In the first section *Equal Opportunities and Human Rights* are examined from different disciplinary and geographical perspectives. Petra Ahrens and Anna van der Vleuten introduce in their chapter, *EU Gender Equality Policies in Times of Crisis: Different Instruments, Different Actors, Different Outcomes,* EU policies promoting gender equality giving an overview of the development of these programs. They argue that a multi-level setup in EU gender equality policies including supra-national and intergovernmental actors as well as civil society organizations and experts have furthered gender equality in a considerable manner. Nonetheless, more recent developments have replaced 'hard law' by 'soft' new public management measures and moreover restricting the access of actors to policy making in this regard. This is a consequence of the weakening of EU gender policy programmes since 2006, on the one hand, and changes in responsibilities for gender equality policy within EU institutions, on the other. Ahrens and van der Vleuten argue that, under the conditions of the financial crisis, the influence of new member states in the European Union since 2004 and conservative populist parties, the "variety of tools" of EU gender equality policy have come under pressure and claim a "revised feminist utopia" of a "more gender equal European society" (p. 54).

 The following chapters discuss legal regulations and policies referring to antidiscrimination and equal opportunities in different European states enabling cross-national European perspectives. Two examples of legal regulations referring to antidiscrimination and equal opportunities, in Germany and in Great Britain, are presented and discussed. They are transnational to the extent that antidiscrimination and equal opportunities policies have led to the establishment of, not only norms and laws in this regard, but also ideals which hold true for these societies. Doris Liebscher introduces in her article, *Opening Doors: how the German Act on Equal Treatment advaces racial equality,* the German *Allgemeines Gleichbehandlungsgesetz* (AGG, General Act on Equal Treatment) which was passed in 2006. The law was implemented after an extensive public debate during which the planned law was criticized by "the business community" as well as the "mainstream legal field" (p. 52). Meanwhile

 research has been carried through on the AGG, jurisprudence according to the AGG and institutionalization exists. Liebscher argues that the opportunity for legal claims established by this law specifically in cases of discrimination, goes beyond the German Basic Law that includes the prohibition of discrimination in "the traditional understanding" as "not directly applicable to the horizontal relationship between individuals" but rather to a "vertical" relationship between the state and the individual (p. 56). Consequently, the private sector including companies as employers, for example, is now covered which was not the case previous to the establishment of the AGG. Deficits in the law are related to the different responsibilities at the national level and the level of the federal states. Nonetheless, Liebscher points out the empowering effects of the law (p. 69) for persons with experiences of discrimination.

 A different case of equal opportunities legislation in the UK is presented by Hazel Conley in the chapter, *Gender Equality in the UK Public Sector: is reflexive legislation the way forward?* Here, equality law is "underpinned" by European directives without being "prompted" by these (p. 71). For example, gender mainstreaming principles as part of the Equality Act (2010) included additionally age, sexual orientation, gender reassignment, religious belief as well as pregnancy and maternity. Critique against existing regulations was that equality law was "fragmented" in several regulations and was, moreover, not working well by the end of the 1990s (ibid.). Conley argues that, in order to overcome limitations of "traditional anti-discrimination legislative approaches", the involvement of "women's and other civil society groups seeking equality" is required (ibid.). With reference to concepts of 'responsive and reflexive legislation' by Nonet and Selznik (1978/2001) as well as 'reflexive legislation' by Teubner (1983), she examines the implementation of the equality law in the UK regarding gender equality in the public services in form of the 'gender equality duty'. This approach towards equal opportunities legislation is specifically interesting, since it can be regarded as a response to the critique of the European Union's policy to be too bureaucratic or not considering sufficiently its constituency in the member states, and has opened up the perspective for the involvement of civil society organizations, such as women's lobby or feminist organizations, in the legislative process and the impact they can exert.

 Hülya Şimga and Zeynep Oya Usal, in their contribution, *A Case of Collateral Damage: widows of religious weddings in Turkey*, focus on a further European institution, the European Convention on Human Rights, and the question to which extent it can be, in connection with the Convention on the Elimination of Discrimination Against Women (CEDAW), a foundation for the protection of women against discrimination. They examine this question by referring to the specific case of women in Turkey being married solely on the basis of religious marriage. They argue that these women can suffer indi-

 rect discrimination by taking up the case of Şerife Ygit, a widow who was declined retirement benefits because of a solely religious marriage. Şimga and Usal show how the ambiguous position of the Turkish authorities towards religious marriage and secular laws led to indirect discrimination for these women. While secular law is in place in Turkey, and as a corollary religious marriage alone not legally binding, it is not enforced sufficiently, to the detriment of women who are denied social benefits such as the pension.

 They base their argumentation on the concept of 'hermeneutical injustice' by Miranda Fricker (2007), arguing that specifically women lacking resources like education can become objects of discrimination because they cannot "make sense of their experience" (p. 89) and are unable to claim certain rights and justice. At the same time, their social reality of *de facto* partnerships is disregarded by Turkish courts and the European Court of Human Rights, ECHR, where the case was decided in favour of the Turkish state and against Şerife Yigit. Şimga and Usal argue that the justification of the ECHR as well as the Turkish courts based solely on formal argumentation is neglecting the social reality of Turkish women who live in families based on religious marriages. The case exemplifies contradictions which may be connected to Human Rights, if factual realities are disregarded, as in the case of women in religious marriages in Turkey discussed in this article. The European Convention on Human Rights is, moreover, an example for the institutionalization of such general rights as the human rights, which are binding to the member states of the Council of Europe, Turkey being one of them.

 Amel Grami's chapter, *The Parity Law: Tunisian women's next battle*, adds a case study of equal opportunities law and its impacts on women's political participation in Tunisia at the border of Europe, in Tunisia. Referring to the 'Revolution of 14 January 2011', which was the start for a number of social and political upheavals of the so called 'Arab Spring', the article gives insight into a highly topical instance of political change of our time. While focusing on the political participation of women, she examines related ambiguous developments in Tunisia. Moreover, the chapter provides an overview of the considerable engagement of feminist activists at different levels.

 Tunisia being a precursor for women's rights in the Middle East and North Africa since the 1950s, the ideal of gender equality was linked to the state's policies. At the same time, the 'woman question' was instrumentalized by authoritarian regimes and dictatorships such as Ben Ali's in Tunisia (p. 113). After the revolution of 2011, a new law was introduced with the intention to improve women's access to active political participation in the parliament. The ideal of women's equal political participation as a motor for gender equality was pursued by feminist activists, following "the success story of Nordic gender equality" (p. 115). Grami describes the political processes under which the new 'Parity

 Law' was implemented and the political discourses accompanying the elections of 2011. According to this law, every other name on an electoral list should be a woman's. The elections to the NCA (National Constituent Assembly) had a result of a women's share of 24%, falling below expectations. According to Grami, this is a consequence of "the divide between laws and cultures at all levels of practice, social structures or even institutions" (p. 126). While some women were encouraged to run for elections, they were not given favourable positions at the top of electoral lists. In connection to "religious norms and patriarchal ways of interpreting religious texts" (ibid.), Grami argues that women's participation was restricted by the political parties. As a consequence, by far most of the elected women were from the relatively popular Islamist party *Ennahda* that gained many votes. She concludes with the claim for continuous political engagement of women activists and members of civil society.

 The following section, *Gender and Diversity Studies: practices, concepts and methods*, gathers articles on gender and diversity studies, its implementation as well as specific concepts and methods. The chapter, *Adventures of Gender Studies in the Russian Political Context ‒ From Discovery to Politicization: the trajectory of Russian gender studies*, by Anna Temkina and Elena Zdravomyslova gives insight into the development of gender studies in Russia, its interrelatedness to political conditions, such as the *perestroika* at the beginning of the 1990s. The establishment of gender studies in Russia was informed by the interrelations to gender studies on an international scale, on the one hand, and civil society engagement as well as feminist activism in Russia, on the other hand. Moreover, the authors describe how the institutionalization of gender studies was connected to both, sociology and its theories and empirical methods, and international financial support.

 The political and social changes at the beginning of the 1990s created opportunities for new scientific and institutional developments on the grounds of which a critical reflection of gender relations in the Soviet era as well as the post-Soviet era was enabled. More recently, gender studies have been again challenged to come up with the analysis of "new cultural conservatism" and "gender ideology" connected to that (p. 132). Interestingly, the concept of gender was also used by anti-feminist standpoints in the 1990s. Gender had developed into an "umbrella category" containing "both critical and opportunist positions" (p. 139). Gender expertise was now demanded also by a coalition of conservative actors in politics and religion, such as the Russian Orthodox Church, promoting a "conservative turn" in Russia (p. 142). This inversion of the concept of gender links to the findings of the European wide research on gender equality policies QUING, cited above, which also came up with the result that the concept of gender was used by nationalistic political agendas as well (Verloo 2010).

 In Russia, since the years of 2000s international institutions, which had formerly supported gender studies, increasingly withdrew funding leading to several centers of women's studies shutting down. As a consequence, gender studies in Russia had a smaller financial basis. At the same time, as Temkina and Zdravomyslova argue, they became "more critical" and enjoy increasing support in civil society (p. 146). The case of gender studies in Russia shows, just as the other case studies presented in this book, to which extent social and political debates and changes are relevant and taken up in gender and diversity studies and how in turn they can have an impact on society.

 The following chapters deal with concepts and methods that have been developed in the context of gender and diversity studies. Martina Tißberger addresses in her text, *At the Intersection of Gender and Racism: critical whiteness as a method of hegemonial self-reflection,* the interrelations between racism and sexism, and by this complying with the claims of feminists and gender studies scholars for intersectionality, instead of making one form of discrimination, for example based on gender, to the one that counts more. Focusing on the subject's experiences of sexism and racism, Tißberger draws on critical whiteness studies and their endeavor to put "the signifying rather than the signified of race" at the center of interest (p. 149). In this context, "whiteness as a method and didactics of self-reflection" is sketched (p. 150.). Referring to psychoanalytic theory, the text points out how processes of becoming a subject are not only based on gendered differences and their "inscription […] into the 'nature' of individual psyche", as analyzed by Judith Butler and Gayle Rubin, for example, but "how psychoanalysis is an example for the inscription of racism, evolutionism and the normativity of whiteness into the theories of the social sciences" (p. 157). In this process Tißberger analyses "ontologization" as an essential mechanism that makes the social construction of differences of gender and racism invisible (p. 158). The objective of gender and diversity studies as "critical scholarship" is (p. 159), consequently, to uncover these mechanisms.

 Additionally to an overview on critical whiteness studies in the Anglo-American context, the contributions to critical whiteness studies in the German speaking discourse are outlined. Critical whiteness studies may inform selfreflexivity with regard to constructions of race, for example in professional environments, such as counseling, and in our everyday life, the author concludes.

 In the chapter, *Social Justice Trainings: a dialogic approach to diversity education*, Heike Weinbach describes characteristics of the training. Diversity trainings – as a general term for trainings concerned with education on antidiscrimination issues and attitudes – have been one outcome of the establishment of gender and diversity approaches also outside academia. Often developed in certain professional contexts, such as educational institutions and development policy, in connection to activism, diversity trainings make up a

 field that is directly connected to putting into practice insights of gender and diversity studies. Approaches such as the social justice and diversity training and the anti-bias training, which are covered in this volume, refer to ethical and political questions. They relate to human rights and have the objective to overcome discrimination in educational organizations, work organizations, political and civil rights organizations, profit and non-profit organizations, by coming up with educational means to address individuals.

 The social justice and diversity training which was taken up by Czollek, Perko and Weinbach, has been transformed by the inclusion of a different method, compared to the foundations created by Adams, Bell and Griffin (2007) at the University of Massachusetts, the "dialogic concept of *Mahloquet*" (p. 176). Dialogic exchange is emphasized in this approach which is described in detail in the article. The specificity of this approach is the emphasis put on the development of empathy as well as understanding which includes a "metacognitive reflection" (p. 183).

 In gender and diversity studies, which is not confined to the limits of one discipline, the question of methods is crucial. Dagmar Vinz discusses in her contribution, *Transdisciplinarity with 'Science & Fiction'*, the concept of transdisciplinarity as an approach that spans not only different disciplines but also academia and the social world. The concept of transdisciplinarity presented in the chapter has been developed in environment studies as well as in gender studies and gender and diversity studies in the German-speaking context. Drawing on her experiences of teaching in Gender and Diversity studies, Vinz presents an approach of 'science & fiction' with the intention to bridge "the gap between academic feminism and popular culture" (p. 187). She addresses change agents in organizations by linking theoretical contents with fiction, in order "to engender transformations in organizations" (ibid.). She states that by use of this approach, the participation of a broader public in the political as well as scientific debates in the context of gender and diversity studies should be promoted.

 After sketching in a first part concepts and models of transdisciplinarity (TR), she distinguishes between a first approach of "TR as Super-Interdisciplinarity" as it is being discussed, for example, in gender studies, a second approach of "TR as Participation", going back to ideas of empowerment and action research. The third approach is Vinz' approach of 'Science & Fiction' (p. 195). Vinz links this to ideas that have been developed earlier by Donna Harraway (1991). The second part of the chapter is dedicated to the discussion of several novels and how they can be included in the work with students on equal opportunities and change in organizations. The novels have been published in German, some of them have been translated into English, and the author gives suggestions on how to apply them in teaching gender and diversity studies.

 Another type of diversity training is presented by Constanze Schwärzer-Dutta in her article *Unlearning Discrimination: experiences with the anti-bias approach in adult-education in Germany*. She describes the development of the approach in early childhood education in the United States and how it has been adapted for adult-education in South-Africa in the post-Apartheid era. The concept has been transferred to the German context in the 1990s, when the divide between East and West Germany was becoming a widely recognized issue, shortly after the fall of the wall in 1989. Apart from that, violent racist attacks in this period made apparent that dealing with racism on an individual level is a requirement, which was launched together with policy programmes at that time. The specificity of the anti-bias approach is, according to Schwärzer-Dutta, to start with the participants' individual experiences of holding biases and to make them aware of how they can be suffering discrimination and exerting discrimination in certain situations. Power relations and the link between individual experiences and structural conditions are emphasized with this approach, similar to the social justice and diversity training. In fact, this distinguishes these types of trainings from many other diversity trainings in which power relations may be left out with more short-term and superficial aims for trainings. An additional distinguishing factor is the inclusion of exercises in which future action is planned, making changes of existing structures and discriminating attitudes concrete and palpable.

 The text gives an overview on the political discourse on racism in Germany and describes the specificities of the history of racism. In addition to the Nazi-regime, Germany has a history of colonialism, the genocide of Herero and Nama of this time contributes to this history, as well as the holocaust of Jews and Roma and Sinti (p. 218). After sketching key concepts and procedures in anti-bias trainings, Schwärzer-Dutta presents a revised model on the connection between power structures and attitudes and behaviour on the individual level (p. 226). The chapter reveals ongoing conceptual developments and open questions, such as the assumption that individuals have one or more identities at their disposal in the sense of set entities that have to be taken into account and made compatible. This line of thought has been challenged by poststructuralist, queer, feminist, postcolonial and social theories, while it remains a challenge to transfer this into practice.

 The third section of the book presents recent research on *Labour Markets and Organizations: changing social inequalities in Europe*. Peter Streckeisen's contribution, *The Business Case for Diversity: Europe 2020, the economic approach and antidiscrimination policy*, examines the labour-market policy of the European Union which sets norms and requirements for the EU member states. He critically assesses how these policies are not only in line with social movements' claims for equal opportunities but also create "new forms of social ex-

 clusion and social control" (p. 239). Streckeisen argues that "EU labour market policy embodies a rising form of power that rests on the individual responsibility of every person able to participate in the labour market" (ibid.). Equal opportunity policies, he points out, "go hand in hand with economic reasoning" (ibid.). The chapter contains a description of the Europe 2020 policy framework and an analysis of interrelations between diversity management and antidiscriminiation policy and a "new conception of full employment" (ibid.). Analyzing governance instruments, such as the Open Method of Coordination and the European Semester, Streckeisen argues that these are "quite evocative of what Foucault calls the economic tribunal" (ibid.). In this regard, the labour market integration of groups that were marginalized under the Fordist regime, such as women and members of minority groups, remain ambivalent. If the Fordist model of employment was based on the male breadwinner model, restricting the scope of action, specifically for women, the question put forth, is the extent to which the current regime aiming at full employment restricts our scope of action similarly to the model, according to which "both parents maximiz[ing] labour market participation" becomes the only rationale (p. 256). This argument follows concerns raised in feminist and critical social science literature with regard to the subordination of action to economic reasoning.

 The article *Boundaries that Matter: workforce diversity in the STEM field in Germany* presents findings in research on highly qualified migrant women in the technological branch in Germany, 'STEM' standing for science, technology, engineering and mathematics. It offers an approach to diversity studies by considering multiple dimensions of social inequality, namely gender and migration in their interrelations. Moreover, Bourdieu's concept of the social field is taken up, going beyond organizational studies and taking into account the reproduction of norms and standards in a certain professional context, not only within organizations but also in interaction between actors in different organizations in the field. A relational perspective on migrant women's experiences in the world of labour is enabled by relating them to other social actors, the social groups and positions they inhabit in the social field.

 In the chapter Ingrid Jungwirth gives an overview of the technical field in Germany which is less accessible for women than in several other countries, for example some new member states in the European Union. Bourdieu's concept of 'distinction' is applied in regard to the exclusionary mechanisms women may experience in the STEM field.

 The empirical research, which included highly qualified migrant women in the STEM field, having immigrated from post-socialist countries, reveals normative constructions of gender that make it difficult for many migrant women to be occupied according to their qualification. Moreover, exclusionary mechanisms in interactions within the workplace and other encounters,

 such as the employment agency, were experienced. Based on qualitative, indepth interviews, several forms of direct and indirect forms of devaluation of qualifications were analyzed. In addition to gender being used as a sign of distinction, high proficiency of German language, amongst other, was used to marginalize highly qualified migrant women. To sum up, a relational perspective on experiences in the labour market and the work place, reveals how barriers in the career of highly qualified migrant women are related to advantages of the dominant group.

 Another professional field is analyzed in the article *Female Physicians in the Medical Profession: a case study in a German hospital* by Sarah Vader. While women increasingly have entered the medical profession as physicians in Germany, making up a majority in younger age groups (under the age of 35 years), a discourse on the 'feminization of medicine' has evolved within the profession's publications at the same time. On the basis of gender theories, Vader analyzes how, in fact, gender differences are being reproduced in the work sphere in the hospital. This approach is used against the idea of women being "essentially different from men" and will change medicine (p. 283), when they enter the medical profession. The article presents findings from qualitative research on how these changes in numbers and the discourse on 'feminization of medicine' have impacted the work place in the hospital as an organization.

 With her chapter, *Leadership and Cultural Identity*, Victoria Showunmi focuses on Black Minority Ethnic (BME) women leaders in the UK, filling a gap in existing research on gender and leadership in organizations. Women leaders belonging to a an ethnic minority have so far not been taken into account sufficiently. She presents insights from an ongoing study about "leadership and constructions of identity" (p. 301). The question of the extent to which constructions of race and constructions of whiteness determine the concept of leadership still needs further exploration. Based on a large number of interviews, important themes in the interviews are sketched in the article. For example, BME women leaders experience ambivalence in considering themselves in the position of a team leader and, similarly, the necessity to "affirm to everybody why they have the right to be in the leadership position and the right to be considered an expert in the field" (p. 308). Other issues are issues of stereotyping; BME women leaders being confronted with difficulties within teams, who perceived them as not being competent (p. 306). All in all, further research is needed on BME women leaders and the question of the extent to which leadership is based not only on constructions of gender but also on constructions of race and ethnicity.

In conclusion, several fields of research and teaching in gender and diversity studies are presented in the chapters. They show the success of institutionalization of equal opportunity policies as well as draw backs in this re-

 gard. The influence of political actors in different geographical regions and civil society engagement become visible and to which extent social movements' claims have been co-opted during the process of institutionalization. Continous engagement remains a political demand of equal opportunity policies. The analysis of knowledge production, and self-reflexivity connected with this, and as well as methods of equal opportunities have been identified as important fields of gender and diversity studies. Critical issues of gender and diversity studies are the further development of concepts and theories for the analysis of diversity. In this chapter it has been argued that diversity studies can draw on the sociology of social inequality in connection with the process related approaches in gender studies, queer studies, migration studies, racism studies and disability studies. The focus on the multidimensionality of social inequalities and their interrelations as well as a relational perspective is a common claim of gender and diversity studies. How these diversities are reproduced in the context of an increasing differentiation, is a central concern for an emerging field of gender and diversity studies.

## **Discussion Questions**

## *References*

# Equal Opportunities and Law

*Petra Ahrens* and *Anna van der Vleuten*

EU Gender Equality Policies in Times of Crisis: different instruments, different actors, different outcomes

## **1 Introduction**

 The financial and banking crisis of the EU and the ensuing austerity policies have resulted in an unprecedented legitimacy crisis of the European project (Borrás and Conzelmann 2007). This triple crisis not only seems to hit women harder than men but has not spared gender equality policy either. For a long time, EU gender equality policy was presented as best practice showing the way for member states, in contrast to its more modest performance in social policy (Beveridge and Velluti 2008). Overviews1 show how over the past six decades the EU has set up a variety of specific instruments in gender equality policy, which can be roughly divided into legislation, gender mainstreaming and policy programmes. These instruments meet with heterogeneous gender regimes in member states leading to different ways of integrating supranational policies (Liebert 2003; Caporaso and Jupille 2001). As a result, EU policies have promoted change in different countries contributing to more gender equality, but they have not succeeded in creating a single EUwide gender regime. In this regard it is important to note that the EU is not a state, it is a multi-level polity (Van der Vleuten 2007) or even a 'moving target' (Imig and Tarrow 2001). Policies result from the interplay at the EUlevel between supranational and intergovernmental actors, most notably the

 1 For overviews please see, for instance, Abels and Mushaben 2012, Jacquot 2015, Kantola 2010, Klein 2013, Van der Vleuten 2007, Wobbe and Biermann 2009.

 Commission, the European Parliament and the Council of Ministers, as well as transnational actors such as civil society organisations and expert groups. This interplay in turn is caught in the dynamics of downloading and uploading preferences between national and European politics. Even though this multilevel political system has resulted in an impressive set of gender equality policies in the past, we will argue that the present and the future look less bright. We argue that gender equality policies are facing fundamental changes on three aspects. First, there has been a shift away from 'hard law' to softer new public management instruments such as ranking and benchmarking. Second, there has been a shift as regards soft law instruments making them even softer. Third, and linked to these changes, the access to policy-making for actors that promote gender equality has changed to their disadvantage.

 Against the background of the financial and banking crises, we aim to provide an overview of the main changes and their implications for policy making and the variety of actors involved in this policy field. We do so by first discussing the role of hard law and court cases for promoting gender equality at the national level, as well as their fate since 'the crises' broke out and their 'replacement' by new instruments such as the Open Method of Coordination and the European Semester. By discussing gender equality policy programmes as a specific soft law instrument, we then illuminate changes over time with view to policy issues as well as the relationship between supranational and national actors, and the consequences of these changes for EU gender equality policy. Finally, we discuss the role of different key actors in EU gender equality policies, showing how shifts in instruments and institutional venue affect actor constellations and their effectiveness. Overall, we speculate whether the unfortunate coincidence of moving the institutional responsibilities for gender equality further away from the EU institutions responsible for economic and employment policy while 'the crisis' hit hardest, accelerated the downgrading of legislative instruments.

## **2 The Gender Equality** *Acquis***: primary law, secondary law and case law**

 One of the commonly used categorisations of EU instruments distinguishes between primary law comprising the treaties; secondary law covering directives, regulations and decisions; soft law including instruments such as recommendations, resolutions, Action Programmes and the Open Method of Coordination (OMC); and as a last form, the case law of the European Court of Justice (Hiou-Maniatopoulou 2004). The different categories, however,

 have not existed all simultaneously since the foundation of the EU but were developed while becoming necessary for different reasons, thereby shaping each period of EU gender equality policy. In this section we focus on 'hard' primary and secondary law and case law. Together these categories form the so-called 'gender equality *acquis*' (Locher 2012). We will now briefly discuss the meaning and content of treaties and directives, as well as recent developments: a further development of such binding standards has become more and more improbable.

 The Treaty on European Union is the agreement between the governments of the member states on which the EU is based. It has been renegotiated several times. The original Treaty of Rome (1957), establishing the European Economic Community, contained an article establishing the right to equal pay for equal work, regardless of whether work was performed by a woman or a man. The article was included for economic reasons, in order to prevent distortion of competition between different member states, but it would become the cornerstone for the promotion of gender equality. Only three decades later, in the Treaty of Maastricht (1992), the treaty base for gender equality was extended to include equal treatment and equal opportunity in the labour market. In the Treaty of Amsterdam (1997), an article on the fight against discriminations (sex, race or ethnic origin, religion or belief, disability, age and sexual orientation) as well as the path-breaking provision for gender mainstreaming were included (see Section 4). And, finally, in the Treaty of Lisbon (2007), the fight against human trafficking and sexual exploitation was added as well as a Charter on Fundamental Rights. 2 In addition, Article 2 of the Treaty clearly states that gender equality belongs to the values upon which the EU is founded.

 What is the meaning of treaty articles? They offer a basis for legislation and specify which decision making procedure is to be used. In general, however, they do not confer rights directly, as they have to be activated by political or legal activism: turned into legislation, or used for interpretation by the Court if it is given the opportunity to do so.

 Based on the Treaties, over the years, ten directives concerning equality between women and men have been adopted as regards access to the labour market, pay and social security, pregnancy and parental leave, self-employed, and access to and provision of goods and services. (see Table 1). They are the outcome of negotiations between the European Parliament and the Council of Ministers, based on proposals by the European Commission. After initial success in the 1970s, which saw the adoption of strong directives, further

 2 The Charter states fundamental rights also related to the principle of gender equality, but it operates within the limits of the Treaties. No new rights can be derived from the Charter, and its impact is expected to be limited (Ellis 2010).

ties and equal treatment of men and women in matters of employment and occupation (Recast

Directive) (2006/54/EC)

 progress remained blocked by British vetoes in the Council until treaty reforms enabled the adoption by qualified majority and gave a stronger voice to the European Parliament. In addition, a parallel structure was created which involved the social partners. They could adopt EU-level collective labour agreements, which subsequently should be translated into binding directives, but this procedure has resulted in only three relatively weak directives on part-time work, parental leave and the burden of proof (Van der Vleuten 2007).

Source: based on Burri and Prechal 2014.

Equal treatment in occupational social security schemes (86/378, as amended by 96/97) Burden of proof in the case of discrimination

based on sex (97/80/EC)

 As the term *acquis* indicates, the directives constitute a set of hard provisions. Candidate countries have to show that they have adopted them and translated in national legislation in order to qualify for EU membership. Furthermore, there is a mechanism to hold governments to their obligations, called the infringement procedure. If a government does not implement EU legislation and even a series of written and oral exchanges with the Commission cannot convince it to comply with the rules, the Commission can take it to the European Court of Justice (Court). A judgement by the Court should be complied with and usually national governments do obey the Court because of the rep-

 In addition, directives have been adopted implementing the principle of equal treatment between persons irrespective of race and ethnic origin (2000/43/EC) and equal treatment in employment and occupation irrespective of religion and belief, handicap, age and sexual orientation (2000/78/EC). 3

 utational damage a ruling entails. This is especially the case when there is simultaneous pressure by civil society in favour of implementation, creating a 'pincer' mechanism which 'squeezes' a government into compliance (Van der Vleuten 2005, 2007). As a result, even unwilling governments have tended to transpose EU legal standards on gender equality in national law. In addition, a second mechanism has further strengthened the provisions contained in the directives. It is the mechanism of preliminary rulings, where a national court asks the Court in Luxembourg for the interpretation of a provision. Starting in the 1970s, this type of request has lead to the Court giving more than 220 rulings on gender equality issues,4 some of them stretching the meaning and implications of the directives far beyond what governments thought they had agreed on. To cite but three examples, the Court ruled that part-time workers are also entitled to an occupational pension; that positive action measures do not constitute discrimination provided certain conditions are fulfilled; and that equal treatment for women and men also applies to social security entitlements for lesbian and gay couples. This is how the EU became known as a champion of gender equality and was favourably viewed by women's rights groups in member states where national policies continued to discriminate against women, such as in the UK and the Netherlands (Van der Vleuten 2007). Feminist lawyers and activists brought cases for the national courts in order to obtain a decision from the Court which would push reluctant governments to implement EU directives correctly (Cichowski 2007).

 Unfortunately, precisely the success of the directives has caused a boomerang effect: governments have become unwilling to commit themselves to new, costly obligations, especially in times of economic crisis when cutting back public spending in the social sphere with negative consequences for gender equality has become a usual practice (Karamessini and Rubery 2013). The latest directives are marginal revisions of existing ones. Two new proposals were tabled since the adoption of the Lisbon Treaty. The first one aims to extend minimum maternity leave. The Commission adopted it in 2008, it was supported and even strengthened by the European Parliament, and then remained blocked at the level of the Council of Ministers for years. In July 2015, struggling with the legitimacy crisis, the Commission withdrew the proposal. The other new proposal aims to achieve 40 percent of women on company boards. In November 2013, it was adopted by the European Parliament, but since then it is blocked in the Council. Against the background of a eurosceptic electorate, governments are not keen on adopting new European regulation, and definitely not on a contentious topic such as quotas for wom-

4 For an overview of ECJ case law in relation to gender equality, see European Commission (2009)

 en. As a result, the noble principles contained in the treaties risk to remain dormant especially in times of economic hardship.

 Of course, despite their impact, directives also have their limitations. Time and again, feminist actors have questioned the effectiveness of 'hard law' in achieving gender equality. After all, legal instruments establish specific, individual rights, but they do not transform underlying power asymmetries. From the end of the 1990s, a new set of instruments was developed enabling governments to show that they take social issues, including gender equality, seriously without committing themselves to legal obligations. These new type of instruments, however, differs as regards the actors involved and as regards their effectiveness, as we will show in the next section.

## **3 Ranking & Benchmarking: the open method of coordination and the European semester**

 In 1997, against the background of the incapacity of the EU to tackle the rise of unemployment and urged by the need to show that the Economic and Monetary Union in the making would entail benefits for 'all Europeans', the European Employment Strategy (EES) was launched. The EES is a multiannual policy programme and strategy which requires member states to coordinate their national employment policies and commit themselves to certain objectives (such as lowering the unemployment rate) (Jacquot 2015). Thanks to the Austrian ministers of women and labour, gender equality was included as a key component of the EES (Rubery 2005). Subsequently, the Lisbon Strategy was formulated in order for the EU 'to become the most competitive and dynamic knowledge-based economy in the world, capable of sustainable economic growth with more and better jobs and greater social cohesion'.5 For the assessment of progress in realizing the Lisbon ambitions, a new method of policy development was put in place, the Open Method of Coordination (OMC).

 The OMC is a semi-voluntary form of coordination. It relies on a mix of 'soft law mechanisms' such as peer review, ranking and identification of best practices. The Spring European Council formulates guidelines based on best practices and sets numerical targets. Each member state develops its own policies to reach the targets and incorporates them in a National Action Plan for Employment. The Commission issues recommendations to individual member states and monitors the implementation of the guidelines in the Joint Em-

 5 Cf. presidency Conclusions. Lisbon European Council 23 and 24 March 2000; http://www.consilium.europa.eu/de/uedocs/cms\_data/docs/pressdata/en/ec/00100 r1.en0.htm

 ployment Report. Discussion in the Council leads to a renewed identification of best practices and to a new round of the OMC cycle. The OMC aims to promote mutual learning, and to foster the generation and diffusion of new ideas and practices across Europe. This postulates the member states as a collective that is eager to learn and committed to finding the 'best' solutions to any of the challenges ahead. These postulations can be questioned on the basis of past performance of states in implementing gender equality directives (Van der Vleuten 2007), and there are fierce debates as to whether or not the OMC is delivering on its promises (Héritier 2003; Trubek and Trubek 2005). How effective is this practice for gender equality?

 In general, one could argue that in an increasingly diverse EU, a flexible coordination mechanism enables more progress than a rigid legal instrument. That may be true, but progress seems to be marginal. For gender equality, the most relevant targets of the EES and the ensuing Lisbon Strategy are those concerning the narrowing of the gender gaps in employment, unemployment and pay, as well as the provision of childcare.6 A basic result is the ongoing production of data and indicators and a yearly ranking of the member states on these issues (Van der Vleuten and Verloo 2012). However, the targets only have 'a general orientation function' (Héritier 2003:118) and member states are pressured but not compelled to meet them. The peer review and the evaluation and recommendations by the Commission constitute a monitoring mechanism without sanctions other than 'naming and shaming' by publishing the performance schedules. Gender equality recommendations were often only selectively picked up or completely ignored by member states (Ahrens 2002), but the Court is not involved and cannot be invoked, so the pincer mechanism cannot work.

 Another result is the production of best practices in the field. Member states are 'encouraged to benchmark their performance against the best performer in the Union' (Héritier 2003:117). This so-called Mutual Learning Programme in gender equality may give rise to policy learning, but it has several drawbacks, of which the most problematic one is that an unwilling government cannot be obliged to change a national practice whereas hard legal instruments can force it to do so. For instance, court cases about discrimination in social security schemes (Directive 79/7) required the Dutch and British governments to fundamentally revise their breadwinner-centred systems for pensions and disability benefits which all discriminated directly or indirectly against married women (Van der Vleuten 2007:130-131). The good practice exchange seminars present initiatives on a wide range of topics but

6 The relationship between gender equality and the OMC has been evaluated in detail by Fiona Beveridge and Samantha Velluti (2008).

 with no strings attached. Against a background of budgetary constraints the impact is expected to remain limited.

 In 2010, the Lisbon Strategy was updated as the Europe 2020 Strategy. Its central aim is to promote an 'intelligent, durable and inclusive' growth (Jacquot 2015:153). It is based on the same coordination mechanism as the OMC and monitors the economic and social reforms which member states conduct, without any possibility for sanctions. Sophie Jacquot argues that, even more alarmingly, gender equality has disappeared almost entirely from the Strategy, as the objectives and indicators of the Europe 2020 Strategy do not refer to gender and even employment indicators are no longer formulated in gender-specific terms but refer to neutral adult workers (2015:154). As a result, the Commission has no tool to include gender (in)equalities in its evaluation of national policies and recommendations for member states.

 Not only the Open Method of Coordination is an important EU soft law tool, the strategy for gender mainstreaming and policy programmes also fall into this category. In the next section we will show how, more importantly, they have they been core instruments in EU gender equality policy.

## **4 Promoting Issues and Actors: gender mainstreaming and gender equality policy programmes**

## *Gender Mainstreaming*7

 The Treaty of Amsterdam (1997) has become famous among feminist scholars and activists alike due to the inclusion of the so-called gender mainstreaming article 3(2).8 The adoption of the article was not least the result of a coordinated lobbying by the European Women's Lobby and the Women's Rights and Gender Equality Committee in the European Parliament (Helfferich and Kolb 2001) and was broadly perceived as a milestone for gender equality (Walby 2005; Wobbe and Biermann 2009).

 Gender mainstreaming is a hybrid instrument: it is a treaty article (see section 2) but without directly enforceable fundament since the ECJ cannot build a case on this obligation; there are no directives based on it, thereby

 7 The origin and implementation of gender mainstreaming have been dealt with elsewhere extensively (cf. Frey 2003; Fuhrmann 2005; Jacquot 2015, Lombardo, Meier and Verloo 2009), we focus on its principles and implications only.

8 Article 3(2), Treaty of Amsterdam: "In all the activities referred to in this Article, the Community shall aim to eliminate inequalities, and to promote equality, between men and women."

#### EU Gender Equality Policies in Times of Crisis 39

 leaving its implementation to soft law instruments in the end. In some cases gender mainstreaming made it into hard laws such as the regulations for the European Social Fund, but as an approach, gender mainstreaming goes beyond legislation and specific actions. By definition, the full implementation of gender mainstreaming would mean approaching all supranational policies from a gender perspective. Thereby, the policy domains have been – hypothetically – broadened extensively. Also, implementing gender mainstreaming caused the set-up of new actors such as the interinstitutional High Level Group on Gender Mainstreaming, a development we will cover further below.

## *Gender Equality Policy Programs*

 The European Commission exploited gender equality policy programmes as a specific soft law tool to deepening and widening gender equality policy when the Council lacked the political will to push forward gender equality issues (Hoskyns 1996; Mazey 1998). The creation of policy programmes was justified in the beginning by references to treaty article 141(2), allowing to launch positive action measures for the underrepresented sex, yet, the policy programmes became institutionalised and an independent soft law tool. Over time, every change in the political environment impacted upon policy programmes and the Commission adjusted the function of policy programmes accordingly thereby making full use of the flexibility of soft law tools.

 Based on their long history, policy programmes have become one of the best-institutionalised soft law instruments of EU gender equality policy (Ahrens 2018). A total of eight programmes were adopted with continuous changes regarding time span, topics, approach, scope and actors involved that will be illustrated in more detail below. They can be roughly divided into two groups, with the first one covering the five programmes between 1982 and 2005, and the second group covering the three programmes since then. While the first five programmes were so-called action programmes suggested by the Commission and adopted by the Council of Ministers9 , the Commission adopted the last three without the Council or the EP. The groups also differ regarding their impact on gender equality with the first group being more effective than the second. In particular, the Commission used the first policy programmes as their tool to gain responsibility over policy issues that were previously handled nationally. The last policy programmes indubitably lacked the active inclusion of new aspects and were more a tool maintaining the status quo (Ahrens 2018).

9 The fifth programme was also adopted by the European Parliament.

### Creating and Establishing Policy Programmes

 In 1982, the Commission proposed the first "Community action programme on the promotion of equal opportunities for women (1982-85)"10 to the Council. It was set-up at a time when hard law such as the directives (see section 2) were more and more delayed or rejected by member states as a consequence of the neoliberal turn in the 1980s. Unsurprisingly, the formulated programme goal was monitoring the implementation of directives and developing new legislative proposals.

 As regards policy issues, the programme went far beyond the policy scope back then (women as workers) and covered innovative actions like women's training networks and promoting the participation of women in information and communication technologies (ICT). Also, the planned actions acknowledged the particularities of female employment and included a section on equal treatment for immigrant women. The title already signalled the specific focus on "the promotion of equal opportunities *for women*" (authors' emphasis), a reference the Commission drew from article 141(2) allowing for positive measures for the underrepresented sex (Ahrens 2002). Thereby the Commission fostered equal opportunities for women with topics not high on the agenda of the member states even though the scope was limited to employed women and blinded out the unpaid (re)productive work women were (and are) responsible for (Ahrens 2007). The programme also supported the set-up of the Advisory Committee on Equal Opportunities bringing together representatives in charge of equal opportunities from member states administrations (Hoskyns 2000). Besides the more formalized Advisory Committee, the policy programme and its successors became generally a tool for creating transnational cooperation between national actors from public administration and from a variety of women's organizations.

 The second action programme was labelled "Equal Opportunities for women. Medium-term Community programme 1986-90"11 and pursued the same goals as the first one, monitoring directives and introducing positive action measures for employed women. Regarding policy issues, as an innovative field of action the portfolio added measures to reconcile professional and private life. With view to actors, it supported establishing the largest umbrel-

 10 A new Community action programme on the promotion of equal opportunities for women 1982-85. Commission Communication to the Council. COM (81) 758 final, 9 December 1981. Bulletin of the European Communities, Supplement 1/82.

 11 Equal opportunities for women. Medium-term Community programme 1986-90. Commission Communication to the Council. COM (85) 801 final and final/2, 19th December 1985. Bulletin of the European Communities, Supplement 3/86. Second Council Resolution of 24th July 1986 on the promotion of equal opportunities for women, OJ C 203, 12/08/1986.

 la organisation of national women's organisations in Europe, the European Women's Lobby (EWL) (Hoskyns 2000).

 After this take-off with the first two programmes, the next ones further established them firmly as a soft law tool in gender equality policy. The "Third medium-term Community action programme on equal opportunities for women and men (1991-95)"12 covered new topics such as women in decision-making and the equal participation of women in economic and social life and thereby extended the programme goals beyond employment policies. It also introduced Commission-led transnational programs13 and was particularly successful in establishing new transnational cooperation. Another change in the programme was announced in the title with "equal opportunities for *women and men*" (authors' emphasis) signalling a turn from understanding women as a deficient group of workers that need to adjust to a male norm to disadvantaged women that need different support than men (Ahrens 2002). As a consequence, the programmes presented equal opportunity policies including positive action measures as a crucial element of economic and structural policies14 (Rees 1998, Hoskyns 2000).

## *Transforming Policy Programmes: transforming gender equality policy*

 In the "Fourth medium-term Community action programme on equal opportunities for men and women (1996 to 2000)"15, the Beijing Platform for Action (UN World Conference of Women in 1995) influenced the overall design and gender mainstreaming was introduced as the main organizing principle. As a result, the Commission extended the policy issues to reconciliation and redistribution of paid and unpaid work and to the target group of disadvantaged and marginalized women. On the one hand, the programme put the Commission in the position of a mere moderator of an impressive number of sixty-nine programmes covering a broad diversity of subjects in the member states. On the other hand, the programme introduced a variety of reporting obligations for member states to the Commission, regarding the imple-

12 Council resolution of 21th May 1991 on the third medium- term Community action programme on equal opportunities for women and men (1991 to 1995) (91/C 142/01).

 13 The transnational programme was called "New Opportunities for Women" (NOW) and was financed within the framework of the EU structural policy, the European Social Fund. NOW made gender equality policy more visible in EU structural policy, although its narrow focus on women returning to the labour market attracted criticism (Schunter-Kleemann 1999)

 14 Also, gender mainstreaming was mentioned on a side-note for the first time in EU policies.

15 95/593/EC: Council Decision of 22th December 1995 on a medium-term Community action programme on equal opportunities for men and women (1996 to 2000)

 mentation of gender mainstreaming in the EU structural funds and regarding their best practices; their annual reports were subsequently compiled as the annual "Report on Equality between Women and Men"16 (Ahrens 2002).

 The next policy programme, the "Programme relating to the Community framework strategy on gender equality (2001-2005)"17, brought a silent revolution, because it was accompanied by the "Community framework strategy on gender equality".18 This means that the Commission had split up its policy programme into a so-called framework strategy and an (operative) action programme. They became two separate but intertwined entities with the explicit goal of transforming structures and promoting gender equality inside and outside the Commission by means of gender mainstreaming and positive actions. The policy issues were broadened once more to cover gender inequalities *beyond* the labour market, gender equality as an indicator for democracy and gender-based violence. In addition, all topics had to be integrated into external relations policies. The action programme helped launching policy networks for different policy issues and the Commission started developing indicators, benchmarks and monitoring mechanisms. At the end of the intertwined framework strategy and the action programme, a high number of actors far beyond the Commission became involved in gender equality policy programmes, with the trade unions and national women's organizations as main players in funded projects (Ahrens 2018).

 The actions taken by the Commission with this policy programme demonstrated a fundamental change and improved gender equality policy considerably compared to the previous programmes. This can already be seen by the switching of title from 'equal opportunities' to 'gender equality' thereby marking a more comprehensive understanding of gendered inequalities and the way gender is constructed in society. Moreover, the framework strategy for the first time also strongly framed gender equality as a question of democracy, a universal right as explained earlier; a question "of all citizens women and men alike to participate and be represented equally in the economy, in decision-making, and in social, cultural and civil life".19

16 From 2010 on published as "Report on Progress on Equality between Women and Men".

 17 Council Decision 2001/51/EC of 20 December 2000 establishing a Programme relating to the Community framework strategy on gender equality (2001-2005).

 18 Hereafter framework strategy. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee, the Committee of the Regions. Towards a Community Framework Strategy on Gender Equality (2001-2005), 2000/0143 (CNS).

 19 Cf. Communication from the Commission to the Council, the European Parliament, the Economic and Social Committee and the Committee of the Regions – Towards a community framework strategy on gender equality (2001-2005), COM/2000/0335 final, p. 2.

#### EU Gender Equality Policies in Times of Crisis 43

 In sum, the policy programmes promoted gender equality by supporting harmonization of member states policy on certain topics and by stimulating debates and actions on other topics that were seldom perceived relevant in member states policies. Acknowledging that member states were reluctant to negotiate new directives, the Commission switched to action programmes as one of the main tools in this policy field. By assisting the set-up of a variety of multi-level collaborations, the Commission was also successful in establishing supranational gender equality policy networks via the policy programmes. The Commission created their own network ties, for instance, by closely collaborating with the Women's Rights and Gender Equality Committee (FEMM) in the European Parliament (EP); both aiming to get the most out of the narrow legal possibilities by introducing innovative measures and legislative proposals with each new action programme (Hoskyns 2000). At the end of the fifth policy programme, a large amount of groups with excellent gender expertise existed that could have supported the Commission in designing the next programme; yet, after almost 20 successful years, the nature and function of policy programmes were considerably transformed as will be illustrated in the following chapter.

## **5 Softening the Soft Law: weakened gender equality policy programmes**

 The Framework Strategy came to an end at a time when in 2004-2005 the EU experienced its biggest enlargement ever with ten Central and Eastern European Countries and at the same time, faced a serious setback with the failed ratification of the "Treaty establishing a Constitution for Europe". Against this background, the Commission reversed its established approach for policy programmes: the "Roadmap for equality between *women and men* 2006-2010"20 (authors' emphasis) changed the format and function of this soft law tool; one already visible in the title with switching back from 'gender equality' to 'women and men'.

 The certainly most important change was that the Commission gave up on gender equality action programmes with an own budget. The Commission claimed that other Community programmes such as PROGRESS, DAPHNE or the structural funds were providing the necessary resources (Ahrens 2018). Nonetheless, already in 2008 the specific gender branch in PROGRESS only

 20 Hereafter roadmap. Cf. Communication from the Commission to the Council, the European Parliament, the European Economic and Social Committee and the Committee of the Regions: A Roadmap for equality between women and men 2006-2010. COM (2006) 92 final.

 amounted to nine per cent while the original budget foreseen for gender equality was twelve per cent. The missing three percentage points were spent on the other policy areas and this loss was irreversible as the 2012 analysis of the PRO-GRESS implementation revealed. Even though the planned share of commitments for gender equality had been raised above 13 percent since 2011, the actual expenditure was alarmingly low. The gap between plans and actual expenditure almost only occurred for gender equality (European Commission 2013:66).

 Furthermore, the Commission gave no indication for the overall budget earmarked for gender equality and the FEMM Committee of the EP failed to hold the Commission responsible. Remarkably, the consciousness about the missing roadmap budget disappeared the moment it was decoupled from an action programme (Ahrens 2018), mainly because the FEMM committee was not responsible for the other budget branches which fell under the responsibility of other EP committees.21 Also, the gender equality unit of DG Employment was not able to control the budget expenditure, because a different Commission unit was in charge of PROGRESS (Ahrens 2018).

 In addition, the roadmap was the first gender equality policy programme that did not foresee any new legislative proposals nor – more importantly – any actions with direct outreach to member state level or the social partners. On the contrary, the Commission kept other actors at a distance for the sake of fostering gender mainstreaming implementation in all Directorate Generals (DGs) which boiled down to engaging in an inward-looking time-consuming process (Ahrens 2018).

 While some of the issues of the framework strategy (2001-2005) and the roadmap (2006-2010) seemed similar, it is crucial to note that the roadmap reduced broader social justice claims to equal economic independence. A new section in the roadmap on promoting gender equality in external and development policies revealed the shifted focus on exporting the EU gender regime instead of tackling more efficiently remaining gender gaps in the EU (Ahrens 2019).

 Further changes can be detected with a view to how topics were framed. The framework strategy featured 'Promoting Equal Participation and Representation', terms linked to descriptive and substantive representation, whereas the roadmap only announced 'Equal Representation in Decision-making', a move that might have limited the scope of actions (Ahrens 2019). Also, the roadmap priority areas of action covered Commission activities *only.* No actions were foreseen with member states, women's organisations and/or trade unions, which was a core element of previous programmes. In addition, the roadmap did not propose new actions, but offered rather a compilation of existing activi-

21 PROGRESS, for instance, fell under the responsibility of the Committee on Employment and Social Affairs.

 ties or provided a vague reference to gender mainstreaming and monitoring. It did not contain measures to monitor its implementation progress, but compiled indicators on gender equality progress instead (Ahrens 2018).

 The seventh policy programme, "Strategy for equality between women and men 2010-2015"22 did not bring positive change: the policy issues stagnated as did the scope of accountability and monitoring; the Commission did not set up a new action programme. The policy programme focused on describing the situation of women and men without even mentioning the different impact of the financial and economic crisis on women's and men's economic and employment situation (Karamessini and Rubery 2013). The highlighted shift from broad social justice claims to employment and economics as core topics was completed when adopting this latest policy programme.

 One of the factors ostensibly explaining the deterioration of the policy programmes might be that in 2010 the responsibility for gender equality policy moved from DG Employment to DG Justice. Since the possibilities of one DG in controlling another DG are rather limited (Hartlapp et al 2013), the Commission officers who drafted the programme in 2010 were not in charge of this policy field anymore and could not support further development. Not only has this moved gender equality policy away from those managing the economic and fiscal crisis, the problem was rather the loss of expertise on gender equality in its original home DG Employment at a time when 'the crisis' hit hard.

 By the end of 2015 the Commission further downgraded the accountability of gender equality policy programmes when she published its "Strategic engagement for gender equality (2016-2019)"23 in the form of a commission staff working document; an internal document of lowest status even without approval by the College of Commissioners. With the beginning of 2015 rumours appeared that the Commission was undecided whether to adopt a new gender equality policy programme at all. The Commission's reluctance helped activating supranational gender equality actors. Since early 2015 the European Women's Lobby started a European-wide campaign, not only for the continuation of the programmes but for extension and a stronger commitment (European Women's Lobby 2015). In June 2015, the Commission started a public online consultation 'Equality between women and men in the EU' that still left open whether there would be another policy programme. The consultation offered the chance to vote on the relevance of gender equality topics and to select a limited number of specific actions.

 22 Cf. Communication from the Commission to the European Parliament, the Council, the Economic and Social Committee and the Committee of the Regions. Strategy for equality between women and men 2010-2015, COM (2010) 491 final.

23 Cf. https://ec.europa.eu/anti-trafficking/sites/antitrafficking/files/strategic\_engagement\_ for \_gender\_equality\_en.pdf (9/9/2016).

 This last twist in the history of gender equality policy programmes might become the final criterion for estimating the future role of soft law in EU gender equality policy-making. When approving the Barroso-Commission in 2010, the EP strengthened its role by forcing the Commission to consult the Parliament in certain cases before adopting soft law.24 The EP insisted on this obligation because of the well-known role of soft law as predecessors of hard law. The FEMM Committee of the EP in an – as the authors would argue – act of deliberative interpretation of Commission consultation obligations, contributed to the debate about the future of gender equality policy programmes by adopting the "Report on the EU Strategy for equality between women and men post-2015" (European Parliament 2015). The report proves the decreasing openness and access to the EP (see section 7) as well as the diverging, not to say contrary ideas about what gender equality actually means. After a heated debate in which nationalist conservative groups tried to prevent its adoption, the report was adopted in plenary. Twenty national gender equality ministers stressed their interest in a renewed Commission policy programme, thereby setting the stage for debates among core supranational gender equality actors (die Standard 2015). Despite this pressure from the EP and from member states, the Commission decided not to proceed with policy programmes in the form of Commission communications and published the staff working document. While this needs further investigation, we assume that this format was an uncomfortable compromise to satisfy the EP and member states by not abandoning the programmes entirely. In the following section we will describe in more detail the key (feminist) gender equality actors, how their role changed over time and which consequences this brings about for EU gender equality policy.

## **6 Actors Constellations**

 The previous sections have presented us with an overview of the different policy instruments in the domain of gender equality as well as the changes they have undergone. These changes in instruments cause the entrance of key actors in the political arena or their disappearance from it, and in turn, these (dis)appearances influence the outcome of the policy process. Research indicates that the strength of EU gender equality policies was a result of two characteristics of this policy arena: the presence of velvet triangles and the working of pincers. Velvet triangles are constituted by privileged, personalized links between committed feminist actors at different positions in the pol-

 24 Cf. http://www.europarl.europa.eu/sides/getDoc.do?pubRef=-//EP//TEXT+TA+P7-TA-2010- 0009+0+DOC+XML+V0//EN (9/0/2016).

 icy arena: academics and experts, members of parliament, and administration (Woodward 2004). They have a strong agenda setting function, they help pushing a proposal through the decision making process and critically monitor further developments. The pincer mechanism is at work during the stage of implementation. It refers to the double pressure needed to push unwilling governments and make them adopt as well as implement far-reaching instruments. This pressure is exercised by the Commission, the EP and the Court at the supranational level, as well as women's groups, feminist lawyers and politicians at the (sub)national level, increasing the costs of non-compliance for a reluctant government (Van der Vleuten 2005). In this section, we argue that over the past decade both aspects have changed. We will turn our attention to the actor constellations involved in each policy type and the implications which recent shifts in policy instruments have for the position of feminist actors and the defence of gender equality in times of crisis; how do these changes influence the velvet triangle and the pincers?

 The first type of instruments, 'hard law' such as gender equality directives, involves the Commission as agenda setter who formulates the initial proposal, as well as the European Parliament (EP) and the Council of Ministers of Social Affairs (with the acronym EPSCO), who amend and adopt or reject the proposal. A major institutional shift occurred in 2011, when José Manuel Barroso, president of the Commission, moved the portfolio of gender equality from the Commissioner of Social Affairs to the Commissioner of Justice, Consumers and Gender Equality; and at the administrative level, from the Directorate General for Employment and Social Affairs (DG EMPL) to the Directorate General of Justice and Consumers (DG JUST) (Van der Vleuten 2012). This was a major change, because it resulted in a loss of expertise and access, as well as a change in substance. In fact, since the 1970s, the Equal Opportunities Unit (EOU) within DG EMPL had accumulated expertise on gender equality. It had attracted committed 'femocrats', it had established a range of thematic networks with feminist experts in the member states, and it had developed close links with women's groups through the European Women's Lobby, and with the FEMM Committee of the EP. Also, the substance of gender equality policies changed, because gender equality no longer was an objective of economic and social affairs, but it became framed as a human right and part of the broader fight against discrimination. In the EU, Justice and Home Affairs is a relatively new supranational policy domain, as until recently national governments fully controlled policy making. It is not part of the core of EU 'hard law' policy making but has always focused rather on coordination of national policies. Moreover, human rights concerns are mainly 'externally oriented' towards candidate countries and external trade and development partners of the EU, but they do not have a strong treaty base enabling the development of strong binding instruments for 'domestic use' on combating domestic violence, for instance. The Fundamental Rights Agency (FRA), which was set up in order to advise the Commission on human rights issues, takes a legal approach. It considers gender as one of several grounds for discrimination rather than gender equality as a specific aim cross-cutting all policy domains. In short, the velvet triangle has been stretched and weakened by the organizational shift.

 Secondly, as we discussed in section three, 'hard law' has been replaced increasingly by other policy instruments such as the social OMC and the European Semester. This shift entails the inclusion of new actors and the exclusion of others, but most of all required and promoted a different public service. In the 1970s and 1980s, DG EMPL and especially the Equal Opportunities Unit (EOU), had a militant approach to gender equality and maintained close personal contacts with women's organizations and feminist experts. The EOU acted as an agenda setter and critical watchdog. The spreading of New Public Management ideas led to a 'professionalization' of the EOU, encouraging mobility of public servants and reducing the autonomy of the Unit. All expert networks were disbanded except for the legal and the labour market networks. In a second wave of reforms, only a single network was maintained (ENEGE, the European Network of Experts on Gender Equality) which no longer was asked to provide the Commission with innovative ideas and critical analyses, but to be a service provider which delivers accurate information. After endless negotiations the European Institute on Gender Equality (EIGE) was set up with the idea to create an independent structure for the coordination and exchange of information and knowledge (Jacquot 2015). This information is needed for the production of rankings, best practices and policy recommendations in the framework of the OMC and the European Semester. In these processes, an increasingly dominant role is played by the member states and their representatives. There is a strong presence of the member states in EIGE, as opposed to their absence from the previous activist networks. In 2001, the High Level Group on Gender Mainstreaming, composed of national civil servants, took over the responsibility for the annual report on gender equality from the EOU.  The European Semester requires in-depth analysis of member state policies as to their contribution to competitiveness, employment and the functioning of EMU (Zeitlin and Vanhercke 2014). Accordingly, monitoring is shared by three directorategenerals, namely DG Economic and Financial Affairs (DG ECFIN), DG EMPL and DG TAXUD (responsible for taxation and the customs union) under the coordination of the Secretariat-General (SG) which constitutes the Commission's president staff. They advise member states on a broad range of issues such as real estate prices, pensions and unemployment benefits. This implies that the preeminent DG ECFIN also gives its perspective on labour mar-

 ket issues. In this process, gender equality has been 'mainstreamed away' and been subordinated to fiscal and monetary objectives (Jacquot 2015). Crucially, the EP and the Court are kept outside the process. There is no 'pincer mechanism', because the tools to obtain compliance with the objectives are purely intergovernmental and consensual, such as the discussion of best practices and rankings (Van der Vleuten and Verloo 2012). Litigation, let alone strategic litigation, which has been used in the past as a crowbar to promote implementation of higher standards (Cichowski 2007), simply is not possible when there is no binding legal instrument. In 2014, the EWL and trade unions have joined forces in the European Semester Alliance, with the aim to monitor attention given to social and gender equality issues, but their position is marginalized in the deliberations between ministers and diplomats based on the Commission reports. Also, any recommendation has to match the logic of DG ECFIN, which sits uneasily with the promotion of gender equality.

 A third change has resulted from the increase of eurosceptic, populist and conservative political parties in the member states and their presence in the EP, including in the FEMM committee. The FEMM committee used to be an activist promoter of gender equality which became famous for the hearings it organized and its own-initiative reports, but its increasingly mixed composition has contributed to a loss of militancy (see previous section). Also in this respect the velvet triangle has lost some of its mobilizing impact. In addition, the broad support in the EP in general for new far-reaching gender equality policies seems to have waned and the recommendations from the FEMM committee are not taken seriously by other committees (Jacquot 2015).

*Table 2*. Feminist actors in the European policy arena

*Source*: Compilation by authors

 Changes in instruments as well as changes in the political climate have disempowered actors promoting gender equality and, as a result, two characteristic mechanisms in this domain, the velvet triangle and the pincer mechanism, have lost importance.

## **7 Conclusion**

 In this chapter, we have discussed EU gender equality policy from the angles of instruments and actors, and how they can be understood in the context of European integration over time. The successful adoption of ten directives on gender equality, hard law instruments, involving feminist actors and creating 'pincers', came to a halt each time when in the face of crisis member states did not want to be bound by such far-reaching commitments. However, precisely in times of crisis the EU is expected to show a social face and alleviate conditions of unemployment and precariousness. As a result, we have seen how hard law instruments have been replaced by different types of soft law tools, including the Social OMC, the strategy of gender mainstreaming and gender equality policy programmes. These programmes have undergone profound changes as well. They started as a compromise-driven process between Commission and member states via the adoption in the Council. The European Parliament and civil society (in particular women's organisations) were able to participate in negotiations and the latter also in implementing the policy programmes. The programmes helped harmonizing member states policies through transnational projects and created a common understanding of EU gender equality policy goals. Policy programmes were the Commission's tool to develop innovative policies and their specific gender regime. With the adoption of the roadmap in 2006, gender equality policy programmes lost their innovative potential, their budget, and their role for harmonizing member states policies. They became an ever softer soft law tool, first as Commission communications without Council adoption and ultimately reduced to a Commission staff working document. In the last section we linked these developments to actor constellations and showed how feminist actors have lost access in three respects: because of the replacement of hard law by soft law instruments, which means that no new options for strategic litigation open up; because of the reorganization of the Commission bureaucracy, which has resulted in a loss of access and expertise as well as a shift from feminist to technocratic policymaking; and because of the changes in the composition of the EP.

 As a result, nowadays EU gender equality policies cover a wide variety of topics going beyond the labour market, and include a variety of tools with different degrees of effectiveness. However, in times of crisis these policies are

 under pressure. In addition to the enduring economic and financial crisis, there has been a deepening of the legitimacy crisis because the EU does not seem to be able to deal with the consequences of the ongoing war in Syria and the rise of the so-called Islamic State in the Middle East. The influx of large numbers of refugees and terrorist attacks almost have pushed economic and monetary issues to the second place. Still, in all these debates gender concerns are absent and openings are not self-evident given the actors involved.

 In a broader context, it would be necessary to also take into account further urgent gender equality policy issues like reproductive rights, citizen rights for refugees and migrants, and inter/transsexual rights that are not visible on the supranational level. In other words, a revived feminist utopia of what a different, more gender-equal European society should look like is required; an idea that does not deliver an understanding of equality as adjusting females\* to white heterosexual males thereby ignoring other social spheres that follow different logics such as the reproductive sphere and 'care' in a broad sense.

## **Discussion Questions**

## *References*

http://diestandard.at/2000017258871/in-der-EU. (5/9/2016)

## *Doris Liebscher*

## Opening Doors: how the German General Act on Equal Treatment (AGG) advances racial equality

 The party was over for 27-year-old Kian before it even began. "Not tonight," said the bouncer of the nightclub in Hanover. Kian intended to go there with some friends, one of whom was celebrating his birthday. Kian´s shirt was white; his sneakers were new. He did not smell of booze, nor look like he was on drugs, but he had a faint idea why he was turned away from the door while his friends were not. It wasn't the first time Kian was not allowed entrance to a club. Sometimes the rejection was blamed on his shoes. Sometimes the bouncers argued that the club was too full. This time the bouncer gave him a surprisingly blatant explanation. "The boss doesn't want too many foreigners to come in," he allegedly said. Kian is German; his parents are Kurdish.

 Munich resident Hamado, who is originally from Burkina Faso, had similar experiences in Munich. "You stand there and ask yourself: What have I done wrong?  It is a total humiliation that I find hard to take," explains Hamado (O'Sullivan: 2014). He shares this experience with many people of color and migrants in Germany. Turned away so many times and never able to prove that the rejection was based on racist screening, he organized what antidiscrimination organizations call a 'testing'. With a group of friends, he tried to enter several nightclubs in a single night. Shortly after he was rejected – with typical excuses such as "it's a private party" – his white German friends, who also participated in the testing, passed the doors without problems.

 Hamado and his friends tried to get into 25 clubs and were turned away at 20. Testings in Leipzig and in Hamburg organized by people of color and of Turkish or Arab origin supported by local anti-discrimination agencies showed similar findings. In all these cases, extrajudicial negotiations with clubs took place to raise awareness for discriminatory practices and change racist door policies, in most of the cases without success.

 Can lawsuits based on the AGG help open doors? Can they remedy humiliation? Does the condemnation of racial screening serve as a deterrent,

 preventing further discrimination in the service sector? To answer these questions, the following sections will introduce the history of the AGG, its material and personal scope, further discussing in which cases differentiations are not discriminatory and finally examine difficulties in the process of the enforcements of civil rights.

## **1 European Law as Starting Point**

 Human rights advocates, anti-racist NGOs, organizations for disabled people, feminist scholars and LGBT lawyers celebrated the enactment of the General Act on Equal Treatment (AGG) in August 2006. It had been a long way and not an easy one. The path began in Brussels at the turn of the millennium. On the eve of facing stiff fines from the EU Commission, Germany fulfilled its obligation to enact a comprehensive anti-discrimination act. The AGG incorporated four EU Anti-Discrimination Directives. The business community and their lobby groups reacted quickly against the legislation, claiming that Germany did not have a discrimination problem and warning that the law would be abused. They predicted a flood of lawsuits and the end of the precedence of private autonomy. Their predictions did not come true. Nevertheless, the broader public came to view the AGG as yet another European bureaucratic monster. This view is also held by most of the mainstream legal field.

 Ten years later, a number of positive changes have taken place. The AGG has pushed academic research, anti-discrimination jurisprudence and institutionalized anti-discrimination policy forward into areas, which previously covered only issues of gender equality. Before the AGG, discrimination was tangible only by the equality clause in Article 3.2 and 3.3 of the German Basic Law (*Grundgesetz*, GG) and some sections in German labor law prohibiting gender discrimination concerning employment. Since Article 3 GG does not provide legally enforceable claims many cases of discrimination were not covered by the law. This was particularly true in the private sector because German fundamental rights have no direct effect between private law subjects. In the traditional understanding, fundamental rights only have impact on the vertical relationship between individuals and the state. They are not directly applicable to the horizontal relationship between individuals. Civil courts are in fact bound by the fundamental rights and thus have to interpret provisions of private law in conformity with the fundamental rights. But no private party legal claims can result directly from the anti-discriminaltion clause in Article 3.3 Grundgesetz.

But the AGG did more than establishing new legal claims. Anti-discrimination agencies were established on a federal basis, in some *Länder* (federal

 states) and on a non-governmental level. Legal claims against age discrimination changed collective wage agreements.  It was further used to legally clarify that workplace discrimination because of an HIV infection is unlawful under the AGG. Families successfully sued their landlords because they had to pay more rent due to their Turkish or Arabic background.

 The impact of doctrinal and philosophical discussions on legal equality must not be underestimated. To counter the attacks on anti-discrimination law in Germany, legal scholars have pointed out that freedom and the freedom of self-determination in contracting with others in particular, should be conceived of as inherently linked with, rather than clashing with, equality and dignity alike (Baer 2009). The whole academic discourse on intersectionality is highly influenced by the anti-discrimination approach. US legal scholar Kimberlè Crenshaw started analyzing anti-discrimination law from a Critical Race and Gender perspective using the term intersectionality. She argues that the experience of Black women cannot be understood in terms of being Black and of being a woman independently, but must consider the specific conjunction of racism and sexism. Intersectionality is more than the sum of race and sex and anti-discrimination law, by attaching rights to well-defined categories, cannot accurately address intersectional experiences of discrimination (Crenshaw 1989). In the German-speaking legal field, feminist and anti-racist scholars have applied the intersectional approach to the European context, examining discriminatory discourse and discriminating treatment of women wearing the Muslim headscarf as well as of young men who were denied access to clubs and discos due to specific culturalized and racialized gender attributions (Lembke and Liebscher 2014).

 While such research is important and can help point out the direction in which we should be moving, much still remains to be done. Many scholars and lawyers claim the AGG still does too little, pointing out numerous flaws and loopholes within the law. One example is the so-called 'religious privilege', which allows religious institutions and companies to discriminate against employees or applicants who are not members of their religious communities, even though these institutions and organizations often hold a monopoly in their respective fields of work. Furthermore, they have shown that law enforcement is weak when faced with difficulties in evidencing a claim, biased judges or high legal costs for the plaintiffs. The following chapters describe the scope of the German anti-discrimination law and the challenges to enforce it. To do so it uses claims brought up against racist admission policy in clubs and discos as an example, showing how law, legal practice and public discourse interact.

## **2 The Substantive Scope of Anti-Discrimination Law**

 Where does discrimination take place and in which situations does the AGG apply? Raising this question helps us understand what lawyers mean when they speak of the material – or substantive – scope of the law. Discrimination takes place in many contexts, in the workplace, at the university, in the insurance or housing market, in the neighborhood, in contact with public authorities or at an entertainment venue. While the key question for legislators and political activists is: which aspects of life should be covered by legal protection against discrimination, the crucial question for lawyers and judges is always: does the substantive scope of a given provision apply in the specific context of a legal case?