Ruth Rubio Marn Chair in Constitutional and Public Comparative Law, European University Institute, Florence Parity as Practice:

the Politics of Equality Yale University, March 30-31, 2012 Preliminary Remarks I have been asked by the organizers of the conference to provide theoretical and transnational insights that could serve as a way of framing the conversations that we will have during the conference. I will do so, relying on excerpts of previous writings. A) Normative framing. Gender quotas as parity democracy In an attempt to provide a normatively compelling account of gender quotas, I have argued that gender quotas are best seen as measures striving for a new democratic conception, namely parity democracy, which seeks to overcome the shortcomings of the inherited liberal democratic model which entrenches both what Pateman defined as its underlying sexual contract as well an implausible of human autonomy and independence. In particular I have argued that: 1. Gender quotas that seek the massive incorporation of women to spheres of male power (both public and private) are better conceptualized as tools for crafting a new conception of democracy than as simply measures to ensure women equality of rights and opportunities in certain domains (democracy and not only rights should be the focus of conversation) 2. Gender parity measures seeking an approximate distribution of 50% positions of power and social responsibility between the sexes are both necessary and conceptually different from other forms of quotas seeking a minimum threshold of female participation (parity, not minimum quotas is required) 3. Gender parity quotas have their own specific logic which separates them from other types of quotas seeking to include other politically marginalized or disempowered groups (why women are different) and do not necessarily essentialize women 4. Gender parity quotas can only serve the purposes of parity democracy if, at the same time, other measures are also taken along to ensure that the domains of participation and contribution that have thus far been defined as female (mainly, reproduction and care) become recognized as forms of socially relevant contribution to which men are expected to contribute, in parity (private parity). [Excerpt from The gender of representation: on democracy, equality and parity, Rodrguez-Ruiz, B. and Rubio-Marn, R., ICON, Vol. 6, n.1, 2008, pp. 306-316; citations omitted] The parity democracy we propose is grounded on a preconstitutional issue that affects the legitimacy of the democratic systeman issue of democratic legitimacy that came about with the transition from liberal democracy to the democratic state, and that determines whether this transition can be considered complete. Our argument poses parity democracy as a problem of democratic legitimacy that is different from, and arises prior to, the democratic state's taking on a social dimension. It is an argument that transcends the matter of the constitutionality of affirmative action measures in favor of marginalized social groups, as well as the legitimacy of measures to ensure the presence of these groups in representative state bodies through a quota system. The need for parity democracy came about earlier, hand in hand with the inauguration of the democratic state.

The universal suffrage that was envisaged in the transition to the democratic state was intended to embrace the entire population of men and women within the concept of state. Nevertheless, even though women became eligible to vote and to be elected to public office, the democratic state has remained a masculine state because it did not question the prevailing social contract as a foundational myth of the state nor raise doubts about the pact between the sexes on which the social contract is based. Rather, that transition confirmed and perpetuated the contractual myth of the origin of the state and the ideological concepts upon which it rests, including liberty and equality as attributes ascribed to menan assumption that rendered women inherently unequal, sealing their dependent status. Enlightenment theorists' conceptualization of men as independent beings was accompanied by a parallel conceptualization of women as dependent on and subjugated to men. A particularly eloquent testament to this can be found in the writings of the classic theoretician of democracy Jean-Jacques Rousseau, in which the enlightened author lays out the symbolic gender models on which the state has continued to thrivemodels that, it has been argued, constitute a core, not a peripheral theme in his political works. Rousseau observes how men are naturally free, whereas women, on the other hand, are made to please (men) and to be subjugated by them. He bases this essential natural difference between the genders on their different physical strengths. Nature has made one sex stronger, one weaker. And since for Rousseau, the natural consequently leads to the moral, one must be active and strong, the other passive and weak. What is interesting is that the perception that physical strength is exclusive to men leads Rousseau to assert that only men are free or, rather, that only men have the inclination to be so. Liberty, observes Rousseau, contradicts women's nature, which is to submit to and obey men. This prompts his assumption that justice and reason are also the exclusive territory of men. By the same token, he finds, only men are capable of reason, of searching for abstract truths, principles, and axioms. Women, on the other hand, lack theoretical intelligence; what they do have, as compensation, is the capacity for observation. Women's reason is of a practical sort which leads them to quite capably find the means to arrive at a known end, but does not lead them to find such an end. All of this is dressed up in a series of virtues that compensate for women's natural limitations in terms of reason, and which are associated with chastity, modesty, sweetness, wit, and beauty. The conclusion to be drawn from the above is that the public arena is the exclusive territory of men. Women, on the other hand, were born to remain far away from the public sphere and to put their virtues at the service of the private, which one understood to mean the domestic realm. The boundaries drawn by modernity between public and private terrain, that is, between masculine and feminine, are well known, and it is not our intention to harp on this matter. We do, however, wish to highlight two points: first, arguments that hold men to be political subjects within the modern state and that, at the same time, disqualify women are not simply circumstantial. Nor is the disqualification of women a mere oversight, or a temporary deficiency in the articulation of the statea deficiency that, as with the exclusion of nonproperty owners, could eventually be put right with the transition to democratic statehood. It cannot be regarded as such without casting doubt on the very contractual basis of the state. This is so because the logic underlying the social contract reflects the liberal view of the human subject as an autonomous being in defining his own life project, a view that is likewise upheld by the myth of the independence of the individual, which is to say, the assumption that the individual is free in the sense that he can go about the business of life independently of others on whom he does not depend and who do not depend upon him. Thomas Hobbes eloquently offers this view of the individual: Let us consider men as if but even now sprung out of the earth and suddenly, like mushrooms, come to full maturity, without all kind of engagement to each other. There is no room here for individual dependence or for understanding how to reconcile personal autonomy with the responsibility of dependency. Dependency is seen, not

as a fundamental aspect of the person, but as an external enemy against which man, naturally free, must defend himself. Thus conceived, independence becomes an essential attribute of the individual in the modern interpretation thereof, an attribute that the liberal state poses as a prerequisite for access to active citizenship, and that the democratic state presumes in theory and aspires to in practice. The problem is that, since independence is a myth, the state can only assume the individual to be independent if it goes to the trouble of removing all manifestations of individual dependency. It became necessary to design an I that needs nothing from anyone, an I that is beholden to no one nor is anyone beholden to him. Such a construct was possible to the extent that the individual was conceived of as male, and women were assigned the tasks associated with man's dependency. Thus, what was postulated as women's dependency on mena dependency that disqualified them for the public realmconsisted deep down of their taking on the tasks arising from human dependency, both their own and that of others. These tasks were necessary for the survival of individualsmen and women alikephysically, socially, and culturally. This is the basis of the sexual pact inherent in the social contract. This is the pact of fraternityfraternity expressed as a value in the revolutionary triad, a necessary value for the enactment of the other two: the liberty and equalityof men. In other words, in the social contract men achieved the appearance of being free and equal, and thus independent, thanks to having shifted onto women, in a pact of fraternity, the weight of their own dependency. The independence of men that the social contract celebrates and purports to perpetuate is the result, then, of the shift of their own dependency onto women, a structured shift that is precisely based on this social and sexual contract. In this double contract, women do not figure as subjects but, rather, as outsiders who enable it. Women enable the existence of the public sphere, politics, and society without participating in it, in fact, precisely to the extent that they do not participate in it. Their incorporation as citizens of the state is produced in this scenario through the family, where women give life to the illusion of the independence of men, operating as the invisible support of the I, a support that acts on amorous sentiment. In this way, liberal thinking ended up grounded on a concept of personal autonomy that is also a definition of the genders. Men are the free and independent beings that, as such, can carry out life projects autonomously or cultivate political virtues in the public realm; women are the administrators of man's dependency. The acknowledgment of women's right to suffrage created a wrinkle in the model just described. To grant women the status of citizens meant to also recognize their capacity to act in the public realm as rational beings, as modern subjects, thus breaking with the division of roles imposed by the liberal state. Hence the significance of suffrage, both theoretical and symbolic. And hence why, although women's suffrage did not distort the practical, everyday functioning of the sexual contract, its concession would in most cases come after universal men's suffrage and after a long-fought social and political struggle. Despite all of thisand this is the second point we wish to emphasizeneither the transition to the democratic state nor the concession of women's right to vote and to stand for elections has altered the premises of the sexual contract. To begin with, the effects of conceding to women political rights were mitigated by the cultural and economic reinforcement of the premises of the sexual contract in the postWorld War II years. These were the years of the triumph of the nuclear family as the ideal family model, both in the economic domain and in the social imagination. These were the years that created the myth of the bourgeois figure of the housewife, entrusted with caring for the home, her husband, and children and spending the family salary to the benefit of alla salary that was earned exclusively by her husband. This model of the family diminished the potential of women's suffrage to transform the contractual basis of the state. It reinforced the public realm as the territory of men, as

it did the private sphere as the domain of women, thus solidifying the foundations for the democratic state as rooted in the premises of the liberal social and sexual contract. This meant an endemic majority participation of men in public affairs, employment, and politics throughout a public arena built on the foundations of the ideal of male independence. There is no room, then, for human interdependency as a natural, necessary, and daily feature of people's lives. Rather, human dependency becomes a pathology, something that must be removed and disregarded in order for people to be able to function in the public sphere according to the ideal of independence. In the democratic state, therefore, citizens continue to be conceptualized as independent individuals, individuals who interact with one another as free agents, as it were, while removing all manifestations of their everyday dependencies. As long as it continues to be controlled by men, the public realm will continue to serve this masculine ideal of independence. As long as the state continues to rest on the fiction of independence, participation in public life is possible only for those who are in a position to shift their own everyday dependencies onto the shoulders of others. Furthermore, it is well known that women's shift to the public sphere of independence has not been accompanied by a parallel shift of men to the private one, where human dependency is handled. Such a shift is hard to imagine without a prior cultural reassessment of domestic work. This is why women's independence still depends upon the extent to which they can displace their dependency on to other economically marginalized groups. 4. Human interdependency and political representation The foregoing is the situation parity democracy proposes to rectify. By including an equal number of men and women in the public realm of representation, parity democracy provides the basis for the state to cease being the exclusive venue of individuals perceived as independent, and it allows for dependencesymbolized and managed mainly by womento enter the public realm. The sexual contract had relegated human dependence to the private sphere, considered the natural terrain of women; moreover, the democratic state continues to see it as an obstacle to the ideal independence of autonomous people. With parity democracy, such dependence may move into the public realm as an equally important facet of ordinary life. Once human dependence ceases to be perceived as an obstacle to participation in public affairs, political representation can be achieved not only with regard to the masculine ideal of individuals but also in terms of those aspects that the sexual contract traditionally ascribed to women. The state could then go on to represent all individuals in all their complexity; human autonomy, as aspired to under the liberal ideal, would be thus redefined. The paradigm would no longer be the dependence-free adult but, rather, the adult who takes responsibility for his or her own dependence as well as for those who depend upon him or her as natural limitations on any life project. Parity democracy is, then, in line with the dismantling of the sexual contract and the implementation of a truly democratic state. A parliament composed of a similar number of men and women encompasses independence and the management of dependence in equal measure, thus achieving the advancement of an ideal of human autonomy that assumes the interdependence of individuals instead of denying it. That said, assuming that the goal is to break the sexual contract, and to do so by incorporating interdependence into the political realm as a defining element thereof, we can ask ourselves: Why is it necessary to impose parity democracy to reach that goal? Why is it not enough to have a parliament composed, essentially, of men inclined to pass laws providing both for people unable to function autonomously and for their caretakers? We believe the answer is twofold. First, there is the symbolic and cultural aspect. The very existence of a parliament composed of an equal number of men and women radiates the message to all

citizens that politics is no longer reserved for independent men nor even for a select group of women who have managed to adapt to the male parameters of independence. It is, instead, a setting where both genders must come together to debate the common good. In this sense, parity democracy has the specific potential to expand the horizons of what women and girls imagine to be possible for themselves. And given that women's exclusion from politics is structurally linked to the very definition of masculinity and femininity (respectively, in terms of independence and the management of dependence), parity democracy works as an instrument of cultural transformation that dismantles the pillars of the social contract standing on those definitions. The other aspect is functional. We believe it unlikely that a parliament composed mainly of men can give the management of dependence its due place in the public realmas a fundamental, defining element of that realm and not as a social pathology that must be treated. Since politics has forever been dominated by men who operate on rules conjured up from the myth of independence (think, for instance, about the requirement of total availability in terms of work schedule and geographic mobility), and since this myth has only been sustainable due to the existence of women who handle men's dependency from the shadows, we are now faced with a political world custom-made to fit its own false paradigm. It is not surprising, therefore, that the political class is an avid consumer of care provided by others, while it undervalues the female work of managing dependence. This being so, there is no good reason to think that the political class (consisting primarily of men) would have any interest in questioning a system that privileges them and, at this point, is simply accepted by most people as the natural way of things. Here it could be argued that matters are already changing, and that parity is not necessary to bring about change. There are already women in politics, and there is no reason to believe that their presence will not grow over time. Along with those growing numbers, it may be expected that the management of dependence will take on an increasingly central role in public affairs. We contend, however, that the dismantling of the sexual contract requires parity and, therefore, that it can be imposed by law if it does not occur spontaneously. What the uneven presence of women in politics shows is not that the public sphere, as currently conceived, has internalized human interdependence as a defining element in the same way it has internalized the cult of independence. What the presence of some women in politics proves is that there are women who are capable of playing by the rules created by men in the same way men do. And they are capable of doing it by virtue of bearing a much greater cost than men do (the so-called double shift); or by approximating the ideal of the unburdened male required by the rules of politics (which implies, for women, not marrying, or divorcing quickly, and not having children, or having fewer than desired); or because the privileges of class allow them to significantly shift those dependencies onto the shoulders of other women. Indeed, what is most common for women involved in politics is a combination of all these factors. Although there are women to be found in politics, fitting domestic responsibilities into the demands of a life in politics continues to be the greatest obstacle to women who want to have such a career. In this sense, using a quota system to impose a minimum number of women seems inadequate, simply because it is not enough to dismantle the social contract. It is true that such a minimum broadens the bases of deliberation for the inclusion of interests. It is reasonable to assume that for as long as the average female politician continues to be more responsible for managing dependence than the average male politician, she will be better able, by virtue of her own life experience and that of others close to her, to relate to the demands of caring for dependents. But quotas are inadequate nonetheless in both the functional and symbolic sense when it comes to the ultimate goal of disestablishing the sexual contract. To begin with, quotas can have negative effects. There is the resentfulness of men, who see quotas as an undue privilege, and the resistance of women, who are or aspire to be in politics and do not wish this achievement to be viewed as the result of a quota

rather than merit alone. There is the additional risk that quota women will feel that this status imposes on them a duty to defend the interests of all women. Quotas also create the risk that the traditional, gender-based division of tasks will be reproduced within representative bodies, a division that would ultimately consign women to the ministries, commissions, and committees most involved in dependence issues at the societal level (social affairs, environment, health, education), while reserving the supposedly hardcore issues of politics (economy, national and foreign affairs) for men. Ultimately, under the quota system independence continues to be assumed as the norm, while concessions are made to the representation of the management of dependence as an exception. Instead, parity impacts both genders equally, putting them and the respective notions of independence and the management of dependency each represents on an equal footing in public affairs, with the result that neither dependency nor caretaking nor the female gender is stigmatized. Furthermore, the quota system does not create a base for the types of women who go into politics to become increasingly representative of the female gender in functional terms. Rather, aspiring to a minimum number probably will cause a kind of natural selection among women, favoring those who function most like men and are thus less representative of the underrepresented gender. Therefore, while quotas may change the players on the political field, they will not likely make any change in the rules of the game. Parity, on the other hand, can redefine those rules by granting equal relevance to both independence and the management of dependency. In light of all the above, if we are right and if democracy properly conceived must transcend the premises of the sexual contract, then paritythe equal presence of both genders in politicsis a democratic must. Only by including women and men on equal terms in the public realm is it possible to transform politics from a terrain governed by the myth of human independence and to make room for the notion of interdependence. This will redefine the relative importance and social value placed upon independence, on the one hand, and the management of dependency, on the other. Only then will we be able to reassess gender roles and move beyond the sexual contract. 5. Final observations We have argued that parity democracy is necessary for the transition to and realization of a truly democratic state since it will allow the state to strip away the false paradigm of independence that currently guides participation in politics. Parity democracy would clear the way for those who, by virtue of the sociosexual contract, exemplify and embody the managing of dependency, enabling them to take their place on equal terms alongside those who typify independence. The realm of public representation would then truly belong to all, both male and female, which, as has been said, [would entail] a transformation of the initial concept on which representation is based and, in turn, of sovereignty. And not so much because the population is composed of men and women, but because one represents independence while the other represents the managing of dependency. Parity, then, is about bringing into politics the reality that everyone's independence depends upon the proper management of our nature as dependent beings upon whom, in turn, others depend. The only vision of independence that can be a truly faithful representation of ourselves as human beings is one that incorporates our dependencies as well. Parity democracy aims to integrate the human dimensions of independence and dependence in the public realm. This will free us from the structuring of society based on the liberal disassociation between the ideal of independence/public realm, on the one hand, and dependency/private realm, on the other, and from the respective gender roles associated with each. It is about making room for both ends of this false dichotomy in state representative institutions and about finally building an all-embracing state with the equal inclusion of all individuals in all their dimensions.

Given that women's exclusion from politics has been key to the cultural definition of the genders, the project of building this all-embracing state must begin in the political arena through parity democracy. The dismantling of the sexual contract must begin at its foundations, in the definition of what is public. However, this project cannot rest at just that; it must extend to all centers of power within societynot only in politics but at the economic, social, and cultural levels as well. It must also penetrate family walls. In this sense, it is worth celebrating that the Spanish Law on Real Equality of Women and Men, in addition to instating electoral parity, has put into place measures that promote equal participation by women and men in corporate decision making, as well as other measures to facilitate both the reconciliation of work, personal, and family lives and the joint responsibility for domestic tasks and family caretaking. All of this is relevant to the ultimate implications of electoral parity. Advocating parity is part of the larger goal of disassembling culturally entrenched gender roles, a dismantling that must occur in both the public and private realms, most notably in domestic life. Electoral parity puts men and women in the position of being the driving force behind this broader purpose, without which true equality between men and women will prove unattainable. There has been much discussion as to whether women's ethics are different from mens; whether women's ethics are affected by their experience as caregivers and administrators of human relations; and whether these factors would naturally lead women to a type of politics different from mens. If this were true, flooding representative bodies with women would create new operating rules that would make politics more compatible with caring for dependents. Questions such as the following would move to the forefront: Who takes care of the children and parents of members of parliament? What about travel, illness? What time do daycare facilities close? When are school vacations? It would also guarantee the inclusion of human-dependencerelated issues as core interests on the political agenda, rescuing them from their current political and cultural devaluation. Beyond all this, if care theorists are right, what would change would be the very way we do politics. It has been said, for example, that from a highly competitive, aggressive, hierarchical model full of formalisms, we could advance toward one that is more deliberative, empathetic, and cooperative. This new model would be defined more by the search for compromise and mutual responses to shared needs than by the prevalence of particular interests. It would be more about cooperation among individuals who are aware of their interdependence, and less about competition among individuals who see themselves as independent. All of this would make the realm of politics slightly more habitable for many women and for some men, too. It is impossible to know what the world would be like if women had contributed equally to governing it for centuries. What does seem reasonable to assume is that the world of politics made in the image and semblance of women would be different from the one made, thus far, in the image of men; policies and ways of operating based on an awareness of human interdependence would have their rightful place in a world that, until now, has operated on the notion of independence. It is, therefore, reasonable to expect that women's equal participation alongside men in the world of politics would challenge the parameters of what has been considered standard in this traditionally male world. Postscript: While this article was in proofs, the Spanish Constitutional Court issued a decision (STC 12/2008, January 29 2008), holding that parity provisions do not violate the Spanish Constitution. B) The constitutionalism of gender quotas

The adoption of gender quotas has been a source of much constitutional litigation across many different jurisdictions. In some cases it has led to processes of constitutional amendment. In the next two excerpts I provide i) an overview of the constitutionalism of gender quotas in different national

jurisdictions ii) a description and evaluation of the possible competing constitutional justification of gender quotas both in terms of rights and democracy . ii) Constitutional Justification of Gender Quotas [Excerpt from Constitutional Justification of Parity Democracy Rodrguez-Ruiz, B. and Rubio-Marn, R. Alabama Law Review, Vol 60. N. 5, 2009, pp. 1171-1180; citations omitted] The question of legally sanctioning gender parity in political representation has often been lumped together with the related question of legally sanctioned representation quotas.1 Both questions raise a variety of constitutional issues: Are quotas, or is parity, incompatible with, or on the other hand required by, the principle of gender equality? Is either compatible with the right of male candidates to stand for elections? Are they both compatible with the political freedom of political parties, on the one hand, and of the electorate, on the other? Are they consistent with the system of general and unitary representation that underlies political representation in modern states? These and possibly other issues can in turn be confronted from different constitutional standpoints. Broadly speaking, they can be approached as issues of constitutional rights or as issues of democratic representation. Each of these two standpoints allows for variations. Indeed, constitutional reasoning regarding legally-sanctioned quotas or parity in political representation has often centered on a rights debate (notably one focusing on the right to equality) about whether the political sphere allows for substantive equality and, if so, what implications this has. Questions concerning the right to vote and stand for elections, as well as the question of the model of constitutionally-sanctioned democratic representation, have also been raised in connection with equality. The autonomy of political parties has been at the center stage of the debate, too. The importance it has been given depends, however, on whether what is brought to the fore is the notion of political parties as just one more type of private association needing protection from state interference, or rather their nature as associations put to the service of a democratic system. When the latter is the case, the debate surrounding the autonomy of political parties and that around the constitutionally-sanctioned model of democracy becomes entangled. . ... This Article examines the range of possible constitutional approaches to legally imposed gender parity and gender electoral quotas relying on some of the most recent cases brought concerning such types of measures in several countries including France, Italy, Colombia and, most recently, Spain. Emphasis is placed on the decisions of the Colombian Constitutional Court and the Spanish Constitutional Court as missed opportunities to articulate the idiosyncratic logic and justification of parity democracy. This Article also argues that gender parity in political representation has its own distinctive logic and contends that this logic is best captured under a model of democratic representation we labeled Parity Democracy. The implications of this models logic are specified in Column VI and are analyzed below. Before going into this model and its implications in any depth however, we analyze the other possible approaches to parity and quotas in political representation presented in the chart above.

I. THE RIGHTS MODELS As shown in Column I, constitutional reasoning that centers on the notion of formal equality is incompatible with either quotas or parity insofar as it aspires to a legal system that does not draw

distinctions based on suspect criteria, including sex. This is so, in particular, when the enjoyment of fundamental rights is at stake, such as the rights to vote and stand for elections. It is common to find the right to formal equality in political representation discussed jointly with the traditional model of democratic elected representation. Indeed, in the political domain, the right to formal equality and the right to vote appear as defining elements of a representation model in which every citizen has one, and only one, vote and can freely choose among citizens who freely and equally enjoy their right to run for office without constraints of any sort. This general, abstract, unitary, and procedural model of representation is reflected under Column III and, as shown, is not easy to reconcile with either electoral quotas or parity. An eloquent implementation of the idea that formal equality should prevail in political representation, as part and parcel of the general, unitary model of representation, is the decision of the French Conseil Constitutionnel on gender quotas from 1982. In this decision the Conseil was for the first time confronted with the constitutionality of mandatory electoral gender quotas. After a decade of discussions in France, and after the French Socialist Party had adopted the first voluntary gender quotas in the 1970s, Parliament passed an act in 1982 that obliged electoral ballots in municipal elections to have at least 25% of candidates of each gender. Sixty delegates from the opposition challenged the Act before the Conseil Constitutionnel, which declared the law unconstitutional. Faithful to the universalist notion of citizenship prevalent in France, the Conseil held that the principles of equality before the law, of national sovereignty, and the indivisibility of the electoral body, recognized in the French Constitution and in the Declaration of the Rights of Man and the Citizen of 1789, all preclude any person or group from claiming the exclusive exercise of national sovereignty and that they confer every citizen an equal right to vote and to stand for elections, without any qualifications or exceptions, other than those that may stem from such conditions as age or incapacity. The way to electoral gender quotas in France, indeed to gender parity, was opened in 1999, when the French Constitution was amended to allow for affirmative action seeking gender equality in political representation, thus introducing the logic of substantive equality in the political field. After this constitutional amendment, the Law on Equal Access of Women and Men to Elective Offices and Functions was enacted on June 6, 2000, to introduce gender parity in political representation. The law was challenged before the Conseil Constitutionnel, which this time upheld its constitutionality on the basis of the constitutional amendment, which, the Conseil stated, nuanced the principle of indivisibility of the electorate, inasmuch as it introduced a substantive understanding of the principle of equality and allowed for affirmative action to afford men and women equal access to representative positions. Indeed, substantive equality is more compatible with the adoption of electoral quotas. This is shown in Column II of the chart above. Supporters of quotas mostly rely on this notion of substantive equality, whereby the constitutional principle of equality is not conceived as ensuring a neutral legal system, but as grounding the states duty to remove obstacles so that people can actually and equally enjoy the rights and freedoms formally granted to them. This can be done either by ensuring equality of opportunities in the starting position or, at least to some degree, by guaranteeing equality of results. Applied to the political domain, substantive equality implies the states duty to ensure that all, in our case men and women, have similar opportunities to access political power and not just the same formal right to run for office. This logic was controlling in the January 2008 decision of the Spanish Constitutional Court on electoral gender quotas. As shall be explained in further detail in Part IV, the Spanish Organic Law 3/2007, on Real Equality of Women and Men introduced mandatory gender quotas on electoral ballots, whereby these must include not less than 40% of candidates of each gender. Relying on Article 9.2 of the Spanish Constitution, the Constitutional Court upheld the constitutionality of this provision, based mostly on a substantive approach to the constitutional principle of equality and the related possibility of adopting affirmative action measures also in the political domain (a possibility that Article 9.2 explicitly contemplates). This was the same approach to gender quotas taken by the Colombian

Constitutional Court in its decision of March 2000. As we shall see in Part III, however, the latter distinguished between executive appointments and elected positions, making clear that for the latter the autonomy of political parties prevailed thus ruling out the possibility of mandatory quotas in the electoral field. We have seen that in 1982 the French Conseil Constitutionnel declared mandatory electoral gender quotas incompatible with the constitutional principles of formal equality and general and unitary representation. The Italian Constitutional Court reached a similar conclusion in 1995 in the context of a constitutional challenge brought against two laws, Law No. 81/1993 and Law No. 277/1993.17 Law No. 81/1993, regulating local and provincial elections, stipulated that neither gender could have a presence of less than 25% on lists in municipalities of up to 15,000 inhabitants, and not less than 33% in those of more than 15,000. Similarly, Law No. 277/1993, regulating elections to Congress, provided that the political parties must present electoral ballots in alternating gender order (zipper list) for elections to seats subject to the proportional system (that is, for 25% of seats). To be sure, the Italian Constitution does enshrine a substantive approach to the principle of equality in Article 3.2, yet this provision was not found to support the adoption of affirmative action measures in the political field. In Italy, as in France, constitutional amendments were introduced to serve as a departure from a formal towards a substantive understanding of the equality principle in the political domain. As in France, these amendments provoked a change in the attitude of the Constitutional Court towards mandatory electoral gender quotas, a change that occurred, interestingly enough, even before Constitutional Law No. 1 went into effect. Thus when the government challenged the constitutionality of Valle dAosta Law No. 21/2003, which required that ballots for Regional Council elections include candidates of both genders, the Italian Constitutional Court rejected the challenge. In sum, electoral gender quotas and parity are inadmissible under a formal understanding of the equality principle, while they may well be, and indeed often are, justified under a substantive equality model as a type of affirmative action measure. This is so at least until the moment in which women can be said truly to enjoy equal opportunities to access representative positions. Under a substantive equality model, however, it may be difficult to explain why only women, and not also some other politically underrepresented groups (such as younger or older people, and ethnic, religious, or other minorities) should not enjoy similar quotas if they too suffer from underrepresentation. Also, although quotas that ensure a minimum representation threshold for women (25% to 30%) may be easier to justify in the name of equality of opportunities, it is not clear why parity measures would pass a constitutionality test, as it might be difficult to justify that they are proportional to the aim pursued. For one thing, they would be over-inclusive, since they apply not only to women, but also to mensomething difficult to justify on the basis of substantive equality and the logics of affirmative action. It may also be argued that gender parity is disproportionate and is thus far unjustified. It would be hard, though not impossible, to argue that nothing short of a guaranteed representation of women that is strictly proportional to the female population is needed to remove whatever systemic obstacles there may be for women to run for office. II. DEMOCRATIC REPRESENTATION MODELS A rights model can thus justify electoral gender quotas as affirmative action measures, whereas measures seeking gender parity in political representation are hard, though again not impossible, to justify. More difficult to justify under the principle of equality is that such measures should benefit only women and not other underrepresented groups. Let us now explore the explanatory possibilities of democratic representation models. To this end, let us shift to the columns that cover some of the conceivable models of democratic representation besides the

traditional elected representation model. Indeed, to fully account for what has happened in countries where either gender parity or some form of gender quota has been established (but no quotas for other marginalized groups)such as France, Italy, or Spainone has to move beyond both the rights discourse and the contours of the traditional democratic representational model. We already mentioned why the traditional elected representation model is antithetical to both parity and any conceivable form of quotas that would defy the notion of a unitary electoral body (conceived as abstract citizens coming together to exercise their individual right to suffrage). Several models have been put forward recently to challenge this traditional model, triggered by the need to put an end to voters apathy and the privileging of a hegemonic and homogenous traditional political class. Here we would like to test the compatibility of gender quotas and gender parity with the democratic deliberative model, discussed in Part II. A., and the mirror representation model, discussed in Part II. B. Finally, in Part II. C. we propose a parity democracy model, a model in which the logic of electoral gender parity is entrenched in the very logic of the democratic system and is different from, though not incompatible with, the logic that underlies the justification of other electoral quotas. A. The Deliberative Democracy Model Deliberative theories have placed the emphasis on the importance of participation and voice, as opposed to the mere voting procedure. This model is not a radical departure from the elected representation model but rather a corrective thereof that believes that at stake in democracy, including representative democracy, is deliberation and not just voting and that healthy democratic deliberation must be inclusive of as many different voices and views as possible. Under this logic the advancement of the good of all those represented can only be achieved if different groups, with their different views and voices, are present in representative bodies so that sufficient attention is accorded to issues that affect them disparately. This is due as much to epistemological limitations as to the limits of human empathy and altruism. This does not mean that electoral quotas necessarily cast doubt on the universal and unitary nature of political representation of the state. Indeed, defenders of gender quotas do not usually claim that women should vote only for women, receive votes only from women, or only represent womens interests. Nor does this system assume that all women, or indeed all members of any other minority group, must share some common and exclusive interests as a group. The logic of the deliberative model continues to be one where elected representatives represent all citizens. The aim is rather to improve the conditions of deliberation from within that logicassuring a baseline connection between representatives and their constituencies and rescuing minority groups from invisibility and ensuring them and their most likely heterogeneous views a space in deliberation. The aim is, in other words, to enrich and extend the legitimacy of the democratic system without challenging the model of universal and unitary political representation on which the state rests. Under this model, one could well justify the adoption of gender quotas and quotas for other politically marginalized groupsall for the sake of enriching the political debate and ensuring the inclusion in it of as many perspectives and interests as possible. Conversely, it would be difficult to justify why electoral quotas are guaranteed to women but denied to other voiceless or underrepresented groups. Parity would also be difficult to sustain. What seems crucial, for deliberative purposes, is to have a certain critical mass in debates that guarantees the presence of issues, views, and perspectives that would arguably be left out otherwise. This critical mass has been set by the United Nations at 30%. Going beyond such a critical mass to defend gender parity would imply the impossibility of one gender representing the interests of the other. It would thus imply going beyond the very logic of the deliberation model towards the logic of a system of mirror

representation. Neither quotas for women only nor quotas of 50% for women thus seem defensible under the model of deliberative democracy. This is reflected in Column IV. B. Mirror Representation Model Column V corresponds to a mirror representation model. This model represents a radical break with the elected representation model. It confronts the politics of ideas upon which the latter is based with the politics of presence. The politics of ideas, which sustains the standard model in representative democracies, is based on the possibility of one social group representing the interests of the other, because what is essential is ideological affinity rather than shared experience. By contrast, the politics of presence sustainsin the face of growing frustration about the selfreferentiality of politicsthat ideas cannot be entirely dissociated from experience and identity, so that there is a need for representative political bodies to reflect more accurately the plurality of the society they represent. The underlying claim is that people can never accurately represent others with radically different views and experiences. Thus, far from thinking of politics as the realm of abstraction in which representatives act in the name of the entire nation, different social groups should be represented in a parliament that mirrors society in all its complexity, and representatives should speak for the specific interests of the distinct groups they represent. Because gender parity claims that the different sexes should have a representation that comes close to their numerical composition, it would seem compatible with the mirror representation logic. Yet, as pointed out above, most defenders of gender parity emphasize their commitment to the unitary, general, and abstract notion of representationto the idea that, with or without parity (indeed with or without quotas), elected representatives, both male and female, should represent all citizens, both male and female. Moreover, the logic of mirror representation requires that other social groups also be faithfully represented. This allows the conclusion that this is not exactly the shift that is taking place in countries that have embraced gender parity or some form of gender quotas. In these countries, the numerical representation of other social groups has not necessarily followed. Rather, the adequate representation of women is sought as an aim that appears to be detached from, and somehow to precede, the adequate representation of other social groups.

RUTH RUBIO-MARfN*

A New European Parity-Democracy Sex Equality Model and why it won't Fly in the United Statest
This Article argues that over the past years, in Europe, some instruments and policies dealing with gender equality both at the national and supra-nationallevel reflect a move from a narrow antidiscrimination frame to a broader model that tackles the underparticipationand disempowerment of women in public and private life as a deficiency of democracy and a problem of citizenship. By analyzing specific parity measures that have been adopted recently in some European Member States, such as electoral and corporate board gender quotas in publically held companies, the Article posits that a new understanding between parity democracy, sex equality and antidiscriminationlaw is evolving and explains why a combination of legal, historical,cultural, ideological and politicalfactors make it unlikely that a similar development will take place in the United States. Gender inequalities in the United'States and Europe are persisting. Only 59% of women in the United States are in the labor force. Women in the United States continue to earn less money than men for equal work, shoulder more childcare and household responsibilities and are more likely to live in poverty. Women are said to hold only 15% of chair seats in Fortune 500 companies, chairing only 2% of the boards. The figures of women in public office are particularly striking, with women representing only 16.80% in Congress and 17% in the Senate after the November 2010 elections.' In spite of this, gender quotas in politics or in business are not a popular concept. In Europe as well women continue to hold an unequal position in the employment domain. According to the European Union's (EU) lat* Professor of Public Comparative and Constitutional Law, European University Institute, Florence. E-mail: Ruth.Rubio@eui.eu. I would like to thank the participants of the workshop Evolutions in Anti-DiscriminationLaw in Europe and North America held at Harvard Law School on May 67, 2011, for their input on an earlier draft of this paper. In particular I would like to express my gratitude to Mark Tushnet who acted as a discussant. Many thanks also to Mathias Mbschel for his valuable research assistance. t DOI http://dx.doi.org/10.5131/AJCL.2011.0022 1. Database "Women in national parliaments," available at http://www.ipu.org/ wmn-e/classif.htm (last visited Sept. 21, 2011).

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est Report on Progress on Equality between Women and Men, 2 as of 2009, the employment rate of women was only 62.5%. In Europe, 31.4% of the women and 8.1% of the men worked part-time. Significantly, the countries where nearly 75% of women were working (Denmark, the Netherlands and Sweden) had among the highest part-time rates. Whereas the labor market participation of mothers was 11.5 points lower than that of women without children, the rate for fathers was 8.5 points higher than that for men without children. Women across the European Union still earned 17.5% less on average than men. Several explanations, besides discrimination, are now commonly provided. They include persisting gender stereotypes, segregation in the employment market, and the unbalanced sharing of care responsibilities with men. It is increasingly argued that changes are unlikely unless women become more empowered both in the public and private sphere, meaning in politics and in businesses. As of 2010 the average number of female members of national parliaments (single/lower houses) was still 24% and among senior ministers of national governments, the share of women amounted to only 27%. Moreover, only 3% of the largest publicly quoted companies had a woman chairing the highest decision-making body. Nevertheless, as opposed to the United States, over the last two decades the unequal distribution of roles, tasks and power between women and men has become a key issue in European democracies resulting in new approaches, including different types of gender quotas, to advance gender equality and to reconceptualize citizenship rights. This Article argues that Europe is slowly departing from a narrowly conceived equal rights/opportunities (i.e., formal/substantive) sex equality framework in order to gradually embrace what I identify as a parity democracy equality model.3 As we shall see, this model expands the target from the recognition of equal rights and opportunities (mostly in the employment domain) to enabling both men and women to participate equally in all domains of citizenship. Crucially, it reclaims and re-evaluates the domain of social reproduction as a domain of citizenship, and also brings to the fore the interrelationship between sex-differentiated degrees of participation in each of the relevant manifestations of citizenship, i.e., care and social reproduction, politics and the market.
2. EUROPEAN COMMISSION, REPORT ON PROGRESS ON EQUALITY BETWEEN WOMEN AND MEN IN 2010. THE GENDER BALANCE IN BUSINESS LEADERSHIP (2011) [hereinafter EUROPEAN COMMISSION].
3. On the insufficiency of both formal and substantive equality to account for

gender quotas seeking to overcome women's political underrepresentation and the need to understand them as rather embodying a specific democratic conception fighting the legacy of the separate spheres tradition, see Blanca Rodriguez Ruiz & Ruth Rubio-Marin, Constitutional Justification of Parity Democracy, 60 AIABAMA L. REV. 1167 (2009).

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The Article starts with some reflections on the theoretical underpinnings of the proposed parity democracy sex equality model (I). It then shows that this is at least the direction in which equality between men and women has been heading in Europe by describing the framing of sex equality in (mostly non-binding) instruments and policies of the EU and the European Council, which seek to empower women by including them in traditionally male domains of power (both public and private) (II). It also examines specific parity measures that have been statutorily enacted in some European Member States including gender quotas to ensure the balanced participation of women in political bodies and on corporate boards (III). The Article explains how best to understand the connection between parity democracy, sex equality, and antidiscrimination law (IV). It finally introduces some hypotheses about the possibilities and difficulties to transplant a parity democracy sex equality model to the United States (V) before proffering a final thought (VI).

I. PARITY

DEMOCRACY:

PROPOSED CONCEPTION OF SEX EQUALITY

The sex equality parity democracy model takes us back to the origins of the state and representative democracy and to the ideology of the social contract and of the sexual contract on which it rests. 4 It is this social-sexual contract that enshrined the separate spheres tradition in industrial societies, by drawing the modern boundary between the public and the private domain as respectively masculine and feminine (both symbolically and functionally) while at the same time inheriting pre-industrial patriarchy and its system of subordination of women to men in the family domain. Thus, the gendered

identification of the public and private areas was a structural feature of the modern state that disqualified women as active citizens, denying them the possibility to inhabit the so-defined public sphere. 5 Central to the construction of the separate spheres and of the definition of citizenship around the male public sphere was the preeminence given to the notion of independence as a synonym of freedom in the new liberal regimes. Modernity enshrined the liberal view of the subject of rights as an autonomous being, master of his own life project. Whereas being a property owner was initially seen as the key signifier of independence (something which for years justified limiting the franchise to men of certain social positions), with the rise of industrial capitalism economic independence came to encompass the ideal of earning a family wage, so that property ownership, wage labor and self-employment all came to be recognized as forms of
4. See CAROLE PATEMAN, THE SEXUAL CONTRACT (1988). 5. See Nancy Fraser & Linda Gordon, Civil CitizenshipAgainst Social Citizen-

ship, in THE CONDITION OF CITIZENSHIP 88 (Bart van Steenbergen ed., 1994).

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economic independence. 6 As a result, both participation in politics and in the market through employment were acknowledged as respectable domains of citizenship. This understanding of freedom pathologized dependency and those who, by definition, were branded as "dependent."7 Indeed, dependency or interdependency was not seen as a defining aspect of the person, but as an external enemy against which man, naturally free, must defend himself.8 But since independence was from the start merely a myth, the state could only assume the individual to be independent by removing the manifestations of individual dependency as much as possible. And this was possible only to the extent that the individual, the paradigmatic citizen, was conceived as first, propertied- male and then, employed or self-employed-male. Women instead were assigned the task of social reproduction, a task that lacked equal political and social significance. In naturally taking on the responsibility of care it was expected that women would enable men's physical, social, and cultural survival, silently allowing the ideal of men as independent citizens. and actors in the public sphere to work in practice. 9 Men thus achieved an appearance of independence by shifting toward women the weight of their own dependency.' 0 This is how women, by being "just women," enabled men to become citizens. As managers of their own and other people's (i.e., men's) dependency, women were in turn constructed as dependent, as political minors and hence as unfit for active citizenship, the family becoming then a falsely 'depoliticized' sphere of male authority and female labor. As a result, women's citizenship could only be constructed as indirect, a result of their relationship with men, and as passive, depending on men and/or the State for maintenance and protection. Therefore, the extension of male suffrage regardless of property reconciled the concept of employment and citizenship and rendered both dignified spheres of citizenship participation. By contrast, the extension of female suffrage and the granting of equal employment rights to women were insufficient to guarantee their equal citizenship status, because they did not fundamentally alter the underlying sexual contract. In fact, women acquired social and political rights before they achieved equal private law rights, especially vis-a-vis their
6. See Nancy Fraser & Linda Gordon, A Genealogy of "Dependency": Tracing a Keyword of the US Welfare State, in JUSTICE INTERRUPTUS: CRITICAL REFLECTIONS ON THE "POSTSOCIALIST" CONDITION 128 (1997).
7. Id. at 126.

8. See Jean Jacques Rousseau, Discourseon the Origin and Foundationsof Inequality Among Mankind (1755), reprinted in THE SOCIAL CONTRACT AND THE FIRST AND SECOND DISCOURSES 69 (Susan Dawn & Gita May eds., 2002).
9. Rodriguez Ruiz & Rubio-Marin, supra note 3, at 1177.

10. Id., at 109.

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spouses and in the family domain." But even when formal equality of rights between the sexes was finally recognized in a comprehensive manner, the domain of human reproduction and care remained conceptualized as "private" and culturally enshrined as "female," and the implications of this for women's ability to participate in the domain called public were simply denied. This is the situation that a parity democracy sex equality model seeks to address and rectify. Although in its common usage, the notion of parity democracy has been usually linked to the project of empowering women by adopting mechanisms (such as gender quotas) to overcome women's traditional underrepresentation in democratically elected institutions or publicly appointed bodies, the model defended here has a broader and deeper aspiration. Its core objective is to unsettle the separate spheres tradition, understood as the tradition that separates the public from the private domain; defines them respectively as primarily male and female domains; recognizes only the public sphere as a domain of citizenship and power; devalues the social relevance of the activities and forms of participation that take place in the so-called private sphere while at the same time depoliticizing the forms of male power and hierarchy that find expression within it. Unsettling the social construction of gender requires introducing human inter-dependency as a central feature of human life and redefining the type of human autonomy that the liberal ideal tries to protect. 12 The autonomy paradigm, the paradigmatic citizen, can no longer be the dependence-free individual, but rather the person who takes responsibility for his or her own dependence, as well as for those who depend upon him or her, as natural limitations but also as source of meaning of any life project. The paradigm of autonomy thus becomes, not independence, but interdependence, and (inter)dependency and care become constituent components of citizenship.' 3 This makes the fundamental goal of parity democracy be about disestablishing a gendered notion of citizenship, a notion which thus far has passed as simply universal by banning social reproduction from the "public universe" and by imagining a "public" universe inhabited by perfectly independent citizens.

11. THE CONQUEST OF FEMALE SUFFRAGE IN EUROPE (Blanca Rodriguez-Ruiz & Ruth Rubio-Marin eds., forthcoming 2012). 12. Blanca Rodriguez-Ruiz & Ruth Rubio-Marin, The Gender of Representation: On Democracy, Equality and Parity, 6 IcoN 287 (2008). 13. See Joan Tronto, Care as the Work of Citizens. A Modest Proposal,in WOMEN AND CITIZENSHIP 131, 140 et seq. (Marilyn Friedman ed., 2003).

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II. EUROPE'S NEW SEx EQUALITY MODEL: FROM EQUAL RIGHTS AND OPPORTUNITIES To EQUAL EMPOWERMENT AND BALANCED PARTICIPATION
In 1965, the main concern underlying the only primary norm dealing with sex equality in the Treaty of Rome of the European Economic Community (EEC), namely Article 119 establishing the principle of "equal pay for equal work," was the reduction of unfair competition between Member States. It was the European Court of Justice which in a ruling of April 1976 explicitly recognized the principle of sex equality in its double economic/social objective to be "a founding principle of the EEC," opening the way to spillovers beyond the workplace.14 From then on, we observe an evolution of the treatment of equality between men and women from a limited, social, and mostly employment related issue (still at the core of the EU's con5 This evolution has been cerns), to a broader question of justice.1 reflected in the expansion of the legal framework of the EU's gender equality model enshrined in its primary norms, an evolution in which the Treaty of Amsterdam epitomized a moment of constitutional change. The Treaty of Amsterdam added new gender equality provisions. Equality between men and women was incorporated in the Treaty as a fundamental community value to be promoted (Article 2). Inspired by the Beijing Women's Conference, the Treaty also incorporated the idea of gender mainstreaming (Article 3), setting thus the basis for policies in pursuit of gender equality, preventing the confinement to an equal opportunity ghetto and promoting integration across all fields of policy-making. The Treaty also enshrined the Council's EU competence to undertake pro-active measures to combat discrimination based on sex as well as racial or ethnic origin, religion or belief, disability, age, or sexual orientation (Article 13). The principle of equal pay was re-crafted as a principle of equal pay for work of equal value and a new paragraph was added to the new Article 141, allowing Member States to adopt positive discrimination measures. Reaffirmed under the Lisbon Treaty, the European Union still operates under this legal framework whose profile is now reproduced in the European Charter of Fundamental Rights.' 6 The extent to which such legal framework and policies have allowed women to make progress has been questioned. The model's continued reliance on a formal understanding of equality which makes affirmative action measures an exception that the Court of
14. Defrenne v. Soci6t6 Anonyme Belge de Navigation Adrienne, 1976, C-43/75 [ECR 455]. 15. See Agnbs Hubert, From Equal Pay to ParityDemocracy: the Rocky Ride of
Women's Policy in the European Union, in HAs LIBERALISM FAILED WOMEN? ASSURING EQUAL REPRESENTATION IN EUROPE AND THE UNITED STATES 143, 148 (Jytte Klausen & Charles S. Maier eds., 2001).

16. See arts. 20, 21, 23.1 and 23.2, respectively.

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Justice defined narrowly, and the inherent limitations of an antidiscrimination equality model to address structural inequalities, have both been criticized. At best, it has been claimed, the model has accelerated the process whereby some women have entered the male domain of employment, and even so, in a segregated market where the most precarious forms of employment (unwanted part-time, underpaid, with poor employment conditions) are overwhelmingly feminized. Gender equality has broadened to incorporate news concepts and new issues but true transformation in terms of gender equality has remained rather modest.' 7 Still, when taking a look at the areas of policy concern and at the rhetoric endorsed at the EU and the Council of Europe level, we can clearly detect an expansion and deepening in the understanding of the meaning of sex equality since at least the mid 1980s. This was precisely the time when affirmative action, including quotas and binding commitments to counteract indirect discrimination in the labor market, were being questioned. It was a time when a "need was felt to shift the debate from the quantitative claim underlying quotas and affirmative action to a qualitative necessity related to the nature of democracy."18 Regarding the European Union, we can observe that whereas initially European policies were limited to non-discrimination and equal opportunities in the employment domain, gradually there has been an expansion of what equality between men and women means. The main gist seems to be that gender equality is a democratic necessity, encompassing women's empowerment both in the public and private domain as well as addressing the question of reconciliation of work and family life and, as a natural corollary, albeit more tentatively, that of the unfair distribution of family responsibilities. A similar concern with ensuring the balanced participation between women and men in political and public decision-making had become a priority in the European human rights context thanks to the actions undertaken by Council of Europe in the field of gender equality, and under the main responsibility of the Steering Committee for Equality between Women and Men. But whereas in the context of the Council of Europe, women's empowerment could be more squarely justified as a matter of human rights and democracy, given the EU's limited sphere of competences, its initiatives in this domain have typically been instrumentally linked to broader socio-economic objectives. In general, what we see is a wide display of arguments recalling that gender equality is a fundamental right as well as a vital objective to ensure the EU's growth, employment and social cohesion goals and at
17. See Maria Stratigaki, The Cooptation of Gender Concepts in EU Policies: The Case of "Reconciliationof Work and Family," 11 SoCIAL POLITIcs 30 (2004). 18. Hubert, supra note 15, at 144.

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the same time a necessary instrument for the strengthening of European democracies. 1 9 A brief look at the history of the initiatives and instruments of both the Council of Europe and the European Union shows that, whatever their ultimate justification, such initiatives and instruments have all clearly and progressively reinforced each other and gradually come to reflect the parity democracy equality model. The First European Ministerial Conference on Equality between Women and Men held in Strasbourg in 1986 was devoted to Equality between women and men in politicallife-Policy and strategies to achieve equality in decision-making. It was followed in 1988 by a Declarationon equality between women and men, adopted by the Committee of Ministers stating that gender equality was an integral part of human rights and a prerequisite for genuine democracy. Soon after, the concern with the participation of women in decision-making was reflected for the first time in the Third European Commission's Pluriannual Action Program (1991-1995), under a new chapter on the "status of women in society." 2 0 The actions taken to implement the Program marked the beginning of a process now recognized to have been decisive in most Member States, spawning an intensive follow-up process across Europe and culminating in a Recommendation by the Council in 1996.21 This Recommendation invited the Member States to adopt a comprehensive, integrated strategy to redress the under-representation of women in decisionmaking bodies, including, where necessary, through the introduction of legislative and/or regulatory measures and incentives. At the level of the Council of Europe, the concept of parity democracy was also becoming central. The Declarationon Equality between women and men as a fundamental criterion of democracy, adopted during the 4th European Ministerial Conference on Equality between Women and Men in Istanbul in 1997, became a key reference in that context. In fact, the Declaration stated that equality between men and women required a "dynamic challenge to the established power structures and to stereotyped sex roles so as to achieve structural change" and a "new social order." Part of this change required "greater participation by men in the sphere of private life and in caring responsibilities" and a "more equal sharing of responsibilities for decision-making in political and professional life with women"-measures that would arguably "improve the quality of life for all."
19. See, e.g., The Women's Charter adopted by the Commission in Mar. 2010 to commemorate the 15th anniversary of the Beijing Platform for Action (COM (2010) 78 final, Communication from the Commission (Brussels, 5.3.2010)). 20. See the "Third Medium-Term Community Action Program for Equal Opportunities for Women and Men" (1991-1995). 21. Council Recommendation on the balancedparticipationof women and men in decision-making 96/694/EC.

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In the new century, the goal of balanced participation has remained high on the European agenda. It has continued to be an objective pressed by the European Parliament 22 and has remained a priority area in the Commission's Action Programmes on Equality between Men and Women, including the one most recently adopted for the 2010-2015 period. 23 At the Council of Europe level it has been the focus of several additional resolutions and recommendations. 2 4 A 2009 Declaration by the Committee of Ministers (Making gender equality a reality) best captures the new equality model when it refers to gender equality as a fundamental criterion of democracy specifying that, far from merely implying equal rights, it also requires "equal visibility, empowerment, responsibility and participation of both women and men in all spheres of public and private life." It urged Member States to address power imbalances and to take measures to guarantee "the equal sharing of responsibilities between women and men and to reconcile their private, family and professional lives." A major feature of the most recent policy documents has been an increasing emphasis on the gender balance in business leadership. 2 5 III. CONSTITUTIONAL BATTLES AROUND PARITY DEMOCRACY MEASURES: WOMEN'S QUOTAS FOR POLITICAL OFFICE AND CORPORATE BOARDS Whereas the previous section shows the profile of a new model of equality between men and women linked to a vision of parity democracy being advanced by European supra-national entities mainly through soft-law instruments and systems of incentives, the compatibility of this model with constitutional principles is tested when Member States pass legislation making parity democracy measures mandatory. Only then does it becomes clear that the parity democracy sex equality model has the potential to challenge deep-seeded and constitutionally enshrined principles, rights and structures of
22. See European Parliament resolution on the Commission report on the implementation of Council Recommendation 96/694 of Dec. 2, 1996 on the balanced participation of women and men in the decision-making process (COM(2000) 120, C50210/2000, 2000/2117(COS)). 23. EUROPEAN COMMISSION, STRATEGY FOR EQUALITY BETWEEN WOMEN AND MEN
(2010 - 2015) (2011).

24. Worth mentioning are two recommendations of the Committee of Ministers: Recommendation Rec (2003) 3 on The Balanced Participation of Women and Men in Political and Public Decision-Making that defines balanced participation as a minimum of 40% of both sexes in all decision-making bodies in political or public life and Recommendation Rec (2007) on Gender Equality Standardsand Mechanisms. 25. Indeed, the last REPORT ON THE PROGRESS ON EQUALITY BETWEEN WOMEN AND MEN adopted by the European Commission in 2010 (supra note 2) has chosen this as its main focus of attention and justifies the business case for the inclusion of women on considerations of justice as well as considerations about the overall social utility, in terms of micro- and macro-economic objectives.

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government, including those that ensure non-discrimination on the grounds of sex, those that safeguard non-interference domains in the family, political parties and business, and those that shape the channels of democratic self-government. A. Gender Quotas and Political Office

Over the last two decades, the idea of relying on some form of quota to ensure women's access to political office has been accepted in several European countries. In France, Belgium, Slovenia, Spain and Portugal, the law imposes some form of gender quota in electing representatives for political office. 2 6 In many other countries, such as Norway, Sweden, Germany, Poland and the United Kingdom, some of the political parties have adopted gender quotas for electoral candidates voluntarily. It is of course the use of legislatively imposed quotas challenging notions of formal equality, the autonomy of political parties and dominant conceptions of representative democracy that has been most controversial. Not surprisingly, in several European countries including France, Italy and Spain, gender quota legislation has been constitutionally challenged and, in some instances, these challenges have triggered constitutional amendments. 27 An eloquent example of the idea that mandatory gender quotas are incompatible with both formal equality and representative democracy, is the 1982 decision of the French Conseil Constitutionnel striking down an act that obliged electoral ballots in municipal elections to have at least 25% of candidates of each gender. 28 Faithful to the universalist notion of citizenship prevalent in France, the Conseil held that the principles of equality before the law, of national sovereignty, and the indivisibility of the electoral body, recognized in the French Constitution (Article 3) and in the Declaration of the Rights of Man and the Citizen of 1789 (Article 6), all preclude any person or group from claiming the exclusive exercise of national sovereignty. That they confer upon every citizen an equal right to vote and to stand for elections, without any qualifications or exceptions, other than those that may stem from such conditions as age or incapacity. 29
26. See European Parliament Directorate-General for Internal Policies, Policy Department C, Electoral Gender Quota Systems and Their Implementation in Europe 11 (2008). 27. See Blanca Rodrfguez-Ruiz & Ruth Rubio-Marin, On Parity,Interdependence, and Women's Democracy, in FEMINIST CONSTITUTIONALISM (Beverly Baines ed., 2011). 28. See CC decision no. 82-146DC, Nov. 18, 1982, J.O. 3475. For a thorough discussion of the French debate, see Rodriguez-Ruiz & Rubio-Marin, supra note 12, at 287-93. 29. Based on this 1982 decision, in 1999 the Conseil Constitutionnel also invalidated the law regulating elections to the Corsican Assembly, which would have introduced strict parity on electoral ballots. See CC decision no. 98-408 DC [J.O.], Jan. 20, 1999, at 1028.

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The Italian Constitutional Court reached a similar conclusion in 19953o in the context of a constitutional challenge brought against two laws, regulating local, provincial and, to some extent, national elections, and stipulating gender quotas in electoral ballots.3 1 Although Article 3.2 of the Italian Constitution sanctions substantive equality,3 2 the Court basically argued that it was not enough to support the adoption of affirmative action measures in the political field. Like in France, the way to electoral gender quotas in Italy and gender parity had to be opened through constitutional amendments, i.e., by inserting provisions to move from a formal towards a substantive understanding of equality in the political domain.3 3 Such reform was not necessary in Spain. In January of 2008 the Constitutional Court held that the general principle of substantive equality, as enshrined in the Spanish Constitution, was sufficient to limit the autonomy of political parties; the Court thus upheld legislation making it compulsory for electoral ballots to include not less than 40% of candidates of each sex. The Court rejected the arguments put forward by the plaintiffs, according to which such legislation contradicted the formal equality principle in relation to the right to participate in public affairs, political parties' right to self-organization, free speech and ideological freedom, as well as the principle of the unitary sovereignty of the Spanish nation. 3 4 In sum, we see that electoral gender quotas and parity are inadmissible under a formal understanding of the equality principle, while they may well be, and indeed often are, justified under a substantive equality model as a sort of affirmative action measure, at least until women can be said truly to enjoy equal opportunities to access representative positions. Still, in Italy, a general substantive equality provision was not considered a sufficient constitutional foundation to sustain electoral quotas, requiring constitutional amendment, while in Spain the Court held exactly the opposite. In my view, this is due to the fact that even the substantive equality
30. Corte cost., decision no. 422/1995. For a discussion of the Italian debate, see Rodrfguez-Ruiz & Rubio-Marin, supra note 12, at 294 et seq. 31. These are Law No. 81/1993 and Law No. 277/1993. 32. Article 3.2, states that "it is the duty of the republic to remove all economic and social obstacles that, by limiting the freedom and equality of citizens, prevent full individual development and the participation of all workers in the political, economic, and social organization of the country." 33. In France, a constitutional law added a fourth paragraph to Article 3 of the French Constitution, whereby "the law shall favour equality among women and men to have access to electoral mandates and hold elective office." See Law No. 99-569 of July 8, 1999 [J.O.1, July 9, 1999, at 10175. As for Italy, Constitutional Law No. 2/ 2001; Constitutional Law No. 3/2001 and Constitutional Law No. 1/2003 all introduced reforms sanctioning the need to promote parity of access to elective office between men and women. 34. See STC 12/2008, Jan. 29, 2008 upholding law Ley orgdnicapara la igualdad efectiva entre mujeres y hombres (B.O.E. 2007, 71) (on the Effective Equality of Women and Men).

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logic seeking women's equal opportunities in the political domain is insufficient to give a proper account of the aim of sex-balanced composition of politically representative bodies. Instead, it is the nature of democratic legitimacy that is being restated. Under a substantive equality logic, measures that enhance opportunities might be easier to justify than those that guarantee certain results. Similarly, temporary measures can be much better accounted for than parity measures that are open ended in time. Although the goal of enhancing opportunities may justify quotas that ensure a minimum representation threshold for women (25% to 30%), it is not clear why parity measures (i.e., quotas that apply to both sexes, and not only to women, and that set the threshold at 50% or something close to it, like those approved in both France and Spain) would pass a proportionality test. Finally, embracing an affirmative action/substantive equality/equal opportunities logic to support gender quotas in elected offices is also at odds with the unitary representation model and the notion of electoral formal equality that it represents. In order to fully understand what has happened in countries where either gender parity or some form of gender quota has been established, one has to move beyond the rights discourse and address questions concerning the contours of our representative democracy, shedding light on the implications of a shift towards parity democracy. The traditional representation model, i.e., the model of unitary general representation that came hand in hand with the liberal state inaugurated with the French Revolution, is antithetical to both parity and any conceivable form of quotas that would defy the notion of a unitary electoral body, as well as with the prevalence of formal equality in the electoral field that is intrinsic to it. Also, gender quotas and/ or parity defy the traditional, liberal model of unitary general representation, as they question the notion of both abstract citizens and abstract representatives, i.e., the basis on which individuals are considered equally well represented by any elected body of representatives, regardless of the personal features of the representatives. In particular, gender quotas and/or parity bring out that elected bodies constituted mostly by male representatives can no longer be legitimate because they help perpetuate the separate spheres tradition reinforcing its instrumental role in socially defining the sexes and the subordination of women.
B. Women on CorporateBoards

Many European countries, such as Finland, Sweden, Poland, the Netherlands and Denmark, are approaching the problem of women's underrepresentation on corporate boards of publicly held companies through soft measures including corporate governance codes and charters that companies can sign voluntarily. Increasingly, however,

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gender quotas set by legislation are being considered. In 2003, Norway became the first country in the world to pass a law requiring all publically held companies to achieve gender balance (i.e., at least 40% of each sex) on corporate boards,3 5 a measure it extended in 2006 to publicly limited companies. In Spain in 2007, a law introducing gender parity for electoral office also enshrined the goal of gender parity on corporate boards as a goal to be achieved by 2015. In Iceland, legislation adopted in 2010 applicable to publicly owned and publicly limited companies with more than fifty employees aims to ensure that each sex will make up at least 40% of boards by 2013. Even more recently, in 2011 similar quota legislation for state and publicly held companies has also been approved in France, Belgium and Italy.3 6 In the European discourse one finds the business case for diversity defending gender quotas by making reference to the optimization of talents as well as the exploitation of distinctive feminine qualities that would entail the reduction of risk taking, the increase of responsibility, and a less ego driven managerial style. What is distinctively European is that the argument that diversity is good for business is often conflated with the argument that it is also good for democracy.3 7 In my view, this reflects the conceptualization of gender quotas on corporate boards as instruments of parity democracy, or, stated differently, the intention to disestablish sites of economic and social (public) power traditionally inhabited by men only. The constitutional debates that corporate board quotas caused in France illustrate this. In 2011, a new law was passed, requiring the balanced representation of women and men on corporate boards of directors of all public companies and giving businesses six years to ensure that 40% of boardroom positions are taken by women.38 Prior to this, in 2006, a law requiring corporate gender quotas3 9 had been struck down by the Conseil Constitutionnel on the grounds that the law violated Article 6 of the Declaration of the Rights of Man. 40 A constitutional amendment followed in 2008 requiring the law to pro35. Since early 2000, also Denmark, Finland and Iceland set gender quotas for state-owned companies. 36. See EUROPEAN CoMMIssION, supra note 2. 37. See Julie Suk, Gender Parity and State Legitimacy: From Public Office to Corporate Boards, CARDozo L. REV. (forthcoming). 38. Loi no. 2011-10 du 27 janvier 2011 relative e la reprdsentation9quilibr6e des femmes et des hommes au sein des conseils d'administrationet de surveillance et 4 l'dgalitdprofessionnelle (1), JORF du 27 janvier 2011. Within three years French firms must ensure that a figure of 20% is reached. The legislation will apply to companies in France that are listed, have more than 500 employees or have revenues over 50 million euros. 39. Projet de loi relative e l'dgalitd entre les femmes et les hommes, Texte no. 545, 23 fivrier 2006, art. 22. 40. Article 6 of the Declaration of the Rights of Man and the Citizen of 1789 reads (my translation):

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mote equal access by men and women to professional and social responsibility. 4 1 Eventually, this enabled the 2011 law to pass constitutional muster. The wording and location of the amendment (in Article 1 of the Constitution, i.e., among the grand principles of the French Republic) indicate that these changes amount to more than mere deviations from the longstanding principle of formal equality. Instead, they imply the constitutionalization of parity democracy as the modern form of French democracy under which men and women are to share the domains of power and the social responsibility that the exercise of power entails. Arguably, one can read the reference to social responsibility in the French Constitution as including responsibility for social reproduction (spelled out primarily in the managing of care and human interdependency) both on its own ground and as a necessary corollary to ensuring women the possibility to participate in other domains. This would result from understanding gender quotas as following from a constitutional commitment to parity democracy. For our purposes it is important to underline that, on the basis of substantive equality, the case for mandatory gender quotas in corporate boards is more difficult to justify than that of mandatory political quotas, for although most liberal democratic constitutions contain a right to vote and run for office, they certainly do not contain a right to be involved in the management of corporations. 4 2 IV. PARITY
DEMOCRACY, EQUALITY AND ANTIDISCRIMINATION LAW: TOWARDS PARITY CITIZENSHIP

As we can see from the constitutional litigation just described, to the extent that both political and corporate gender quotas entail classifications on the grounds of sex, they have been perceived as deviations from the norm of formal equal treatment. Such deviations are most commonly justified on the basis of another conception of equality namely, one that furthers a substantive or distributive goal, such as those of equality of results or, at minimum, equality of opporThe law is the expression of general will. All citizens have the right to contribute to its making, either personally or through their representatives. As all citizens are equal before the law, they are likewise all equally eligible for any public office, position or employment, according to their abilities and with no distinction other than their virtues and talents. See Conseil Constitutionnel, Ddcision no. 2006-533 DC du 16 mars 2006, Loi relative a l'dgalitgsalarialeentre les femmes et les hommes. 41. Loi constitutionnelle no 2008/724 du 23 juillet 2008 de modernisationdes institutions de la Veme Rdpublique, JORF du 24 juillet 2008. 42. Also, mandatory corporate gender quotas can be seen as limiting property rights and economic freedoms that many constitutions explicitly guarantee. In those constitutions where the content of property is constitutionally recognized as limited by a social function (e.g., art. 33 Spanish Constitution) this social function limitation may be interpreted as giving constitutional coverage to mandatory corporate gender quotas. Alternatively, a constitutional amendment might be the better way to enshrine the parity model.

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tunity. In fact, as I have suggested, it is not clear that a commitment to substantive equality notions is per se sufficient to capture the essence of parity. Its aim is better conceptualized as one of degendering citizenship by affirming what we could call a parity citizenship model. This, I posit, is because even substantive equality notions must rely on some understanding of what are essential forms of human fulfillment, including modalities of participation in the collective. Such forms of participation are embedded in the understanding of citizenship that is explicitly or implicitly upheld.4 3 Let us explore this in more detail. In most European constitutions as well as in European law, including European human rights law, a substantive account of equality between the sexes is becoming the paradigm. Increasingly, provisions that require equal treatment and prohibit discrimination on the grounds of sex are indeed supplemented by provisions or doctrinal interpretations allowing public powers to take measures that classify on the basis of sex, when these measures are proportional to the aim of redressing structural inequalities by redistributing different forms of advantages. 4 4 Moreover, some provisions or interpretations go further and do not just allow, but indeed compel, public powers to take measures to achieve such results. 45 The coexistence of the equal treatment rule and the substantive equality mandates is never quite pacific because prima facie they are characterized by radically different logics. Thus, whereas formal equality is best characterized as a procedural rule shaped like a Kantian categorical imperative ("treat equally or do not differentiate or classify on the grounds of sex"), the substantive equality mandate follows a consequential logic and asserts a substantive outcome, i.e., that of ensuring that there be no disadvantages attached to a person's sex or that the existing ones be removed. 4 6 This tension, which is well exemplified by the ECJ's case law on sex-based affirmative action, is resolved by a balancing exercise, which in Europe takes the form of a proportionality test. But the difficulty of identifying, individualizing and apportioning responsibilities for structural and diffuse systems of privileges and disadvantages makes the task inevitably complex.
43. On fundamental rights as being secured in a certain area only when the relevant capabilities to function in that area are also secured, see Martha Nussbaum, Capabilitiesand Human Rights, 66 FoRDHAM L. REV. 273 (1997). 44. See arts. 157.1 and 157.4 of TFEU; art. 3 of the Directive 2006/54/EC on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation (Gender Recast Directive) and art. 23.2 of the Charter of Fundamental Rights of the European Union. 45. See, e.g., art. 8 of the TFEU, art. 1 of the French Constitution, and art. 3.2 of the German Fundamental Law, specific to sex equality. 46. See Hugh Collins, Discrimination,Equality and Social Inclusion, 66 MoD. L.
REV. 16, 18 (2003).

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Leaving aside the difficult coexistence of formal and substantive equality notions, we find that even a substantive reading of the equality mandate is to some extent elusive: even if spelled out as mandating the aim of "equal opportunities" or "real or de facto equality" it does not in itself provide an answer to the question of equal opportunity "with respect to what?" Without an answer, the emancipatory potential of the equality principle remains inevitably vague. Now, sometimes sex equality or non-discrimination clauses in treaties and constitutions do explicitly refer to the equal enjoyment of rights, and since the same legal instruments contain a list of rights this list constitutes an a priori demarcation of the relevant sphere of substantive equality. 47 More often though, this limited equal rights conception is supplemented by free-standing clauses prohibiting sexbased discrimination without specifying the domain in which it should apply.4 8 Even when the equality or non-discrimination provisions make explicit reference to a domain circumscribed by otherwise constitutionally sanctioned rights and freedoms, constraints and/or uncertainties regarding the actual reach of substantive equality provisions remain. First, we may find that there is a gender bias in the list of rights and freedoms that have been constitutionally enshrined and that some of the domains of human capabilities that may arguably be of utmost relevance for human well being have been left out. Think for instance of the total absence or generally precarious framing of reproductive rights in constitutional or human rights documents. Second, we are typically confronted with a certain procedural asymmetry that makes the equal or non-discriminatory treatment mandate an enforceable right and the disparate treatment to ensure substantive equality only a constitutionally valid prerogative or, at best, a generic mandate addressed to state powers. Third, the substantive equality rule does not per se define the sources of inequality that can be legitimately targeted nor, more importantly, does it say how far the state can intervene in an attempt to redress inequalities, especially when interventions come at the expense of limiting (especially political and economic) liberties that are also constitutionally enshrined. Some of these uncertainties surrounding the reach and transformative potential of both the formal and substantive constitutional equality doctrines can be exemplified by taking a look at the dominant models of antidiscrimination legislation. It has for instance been rightly noticed that there is a clear emphasis in antidiscrimination law on employment participation or on the possibility to earn a living
47. See, for instance, art. 14 of the European Convention on Human Rights. 48. Art. 3.3 of the German Fundamental Law provides that "no person shall be favored or disfavored because of sex."

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through the provision of services for others. 49 The explanation, according to Hugh Collins, lies not only in the distributive effects of employment, since the egalitarian goal could also be achieved through taxation and welfare. Rather the problem is primarily the social exclusion or marginalization that derives from employment discrimination in a capitalist and market-based society. In such societies, lack of employment must be understood as entailing an exclusion from non-material goods; this includes the opportunity to participate in the mechanisms offered by society through which "people may establish meaning for their lives, the connections of community and a sense of self-respect" given that in such societies "work provides for most people the principal mechanisms for constructing meaning, community and status."5 0 What this means then, is that rights also constitute prerogatives for socially recognized forms of participation and interaction. In spite of the prioritization in current antidiscrimination law of employment and provision of services, we could arguably expand the list of non-material goods that the enjoyment of rights and freedoms enables, to embrace more comprehensive notions of human capabilities including participation in education, politics, cultural activities, as well as participation in social reproduction and the care of others. Access to these participatory domains requires not only the recognition of rights as prerogatives, but first and foremost, that there are no insurmountable barriers in the social organization of these activities so that each person is free to choose between a range of possible goals in relation to them. 5 ' The problem is, of course, that even if direct discrimination is eliminated, both formal and informal institutional arrangements tend to maintain existing distributive patterns. 52 As a result, it is often the combination of formal institutional rules and informal social norms that results in the exclusion of some citizens from some domains of participation. In order to address this type of distributive patterns, sex antidiscrimination laws in Europe have been broadened to encompass the formal institutional rules which in combination with informal social norms have a discriminatory effect.58 Yet, they have done so while remaining within certain narrow domains of participation, such as employment and services, privileging thereby the "homo oeconomicus." Moreover, while disparate or impact based antidiscrimination laws have come to challenge the validity of the institutional rules
49. Collins, supra note 46, at 29. 50. Id.
51. Id at 24.

52. Id. at 30. 53. See the concept of indirect discrimination under art. 1.b) of the Gender Recast Directive.

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(e.g., employment conditions), they have left untouched and unquestioned informal social norms (e.g., those requiring women do most of the family work or take most of the part-time employment). There is then a paradoxical reliance of the law on indirect discrimination on the persistence of patterns of structural disadvantage that it may be attempting to redress. 54 The risk of course, is that by accommodating women's "specific situations" (for instance, by adopting measures that allow women to reconcile family and work life), we may end up reinforcing gender roles.5 5 Yet, simply ignoring the obstacles that women, especially in charge of young children, encounter in the labor market does not do much to promote their equality either. What this suggests is that in the end, a durable solution may only lie in identifying what we could call, using Nancy Fraser's classic distinction, "transformative" as opposed to "affirmative" remedies. In our context, this would mean remedies that have the effect of disestablishing rather than entrenching gender roles. 56 The core of our concerns should be first, that many more women than men are structurally excluded from elements that have traditionally been considered both essential components of human welfare and socially recognized forms of contribution, such as participation in employment and politics. And second, that many more women than men end up spending a significant part of their lives and energies in activities, such as the care and nurturing of others, that are neither necessarily conceptualized as central to the fulfillment of human welfare nor recognized as meaningful forms of social contribution. The egalitarian project cannot be one that attempts to correct only the former while ignoring the relevance of the latter.5 7 Instead, the solution requires an unconventional reading of the proper relationship and balance between family and private life on the one hand and work life on the other through a reassessment of the meaning of participation in each domain for both men and women.

54. Collins, supra note 46. 55. For instance, there is a growing concern that the newly formulated aim of maximizing job opportunities for women through flexible jobs and working conditions and family-friendly policy promoted in the European Union under a work/family life conciliation concept will risk giving up the model of full equality of opportunities and full integration in the primary labor market, and translate into the clustering of women in a secondary flexible (homework/telework) and part-time labor market. See Stratigaki, supra note 17. 56. See Nancy Fraser, From Redistributionto Recognition?Dilemmas of Justice in a "Postsocialist" Age, in JUSTICE INTERRUPTUS, supra note 6, at 23-26. 57. This broader transformative goal is what Williams proposes in her recent work which she calls reconstructive as opposed to assimilationistfeminism, criticizing the insufficiencies of a project which sees equality as equality to fit into society as
currently structured. See JoAN C. WILLIAMS, RESHAPING THE WoRK-FAMILY DEBATE: WHY MEN AND CLASS MATTER (2010).

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Here we are confronted with a familiar "bootstrapping problem of institutional design and innovation."5 8 A new regime must be established by the means and within the constraints of the old. Therefore, problem-solving through legislation and institutional innovation becomes possible only after a major part of the problem has been solved. In other words, the "degendering of politics" or, more broadly speaking of citizenship, must be performed by the means available within the institutions and routines of gendered politics. 5 9 This is exactly what parity democracy measures would have to redress seeking to guarantee equal citizenship, understood as parity citizenship, by disentangling the spheres of participation from gender normativity; dismantling the hierarchy between the sexes; and expanding the domains of citizenship to include all the relevant spheres of social contribution and human fulfillment including that of social reproduction. A traditional model of substantive equality that professes equal opportunities but replicates the separate and hierarchically ordered spheres with its biased conception of human well being and its biased assessment of forms of social contribution, cannot achieve this goal. All of this invites reflections about the relationship between antidiscrimination law and parity democracy measures. This relationship is best spelled out if both are seen as instruments of equality law, i.e., as a field of law placed at the service of producing and reproducing the basic conditions of legitimacy in any given democracy. The ultimate aspiration of equality law should be to ensure equal citizenship. This would require the law to respond to the specificities of the different violations of the ideal of equal citizenship shaping the exclusion of different groups over history. In this view of citizenship the emphasis would not only be placed on rights holding but also on the possibility of participation and functioning and on the acknowledgement of the value of different forms of participation as a source of meaning and status, and hence human welfare. Under this understanding of equality law, the specific connection between parity democracy and sex antidiscrimination law would be that parity democracy and the conception of citizenship that it advances would provide an answer to the question of the content of substantive equality applied to sex equality law and to be served by sex antidiscrimination law. For antidiscrimination doctrine in general and sex antidiscrimination law in particular, this would have several implications. For one thing, sex antidiscrimination law should expand to reflect the set of rights and domains of participation that have in the past been restricted or limited on the basis of sex. An antidiscrimination doc58. See Claus Offe, The Politics of Parity: Can Legal Intervention Neutralize the Gender Divide, in HAs LIBERALIsM FAILED WOMEN, supra note 15, at 40-41. 59. Id.

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trine focusing only on employment would no longer be enough. Women's traditional exclusion from the domain of politics and men's traditional exclusion from the domain of care should be equally tackled. Yet, the ever expanding force of antidiscrimination law should not attempt to replace other channels of expression of equality law, such as parity equality and socio-economic redistributive measures, especially given antidiscrimination law's defensive nature and its ability to detect but not redress structural inequities and hence propose transformative remedies. This would mean that antidiscrimination litigation would probably be seen as performing a systemic function going beyond the resolution of individual claims of justice and acting as a trigger for structural reforms that may be better addressed by the legislator. Similarly, a symmetrical approach to antidiscrimination law would probably be inadequate. Instead, ideally, the domains in which antidiscrimination law applies, but also the groups that it protects and how such protection operates, would better serve the ideal of equal citizenship if antidiscrimination legislation was particularly attuned to the historical circumstances dictating the ways in which different groups have in the past encountered obstacles to their enjoyment of equal citizenship. V.
EXPORTING PARITY CITIZENSHIP TO THE UNITED STATES: AN UNLIKELY VENTURE?

Gender inequalities in the United States are the same as, or worse than, in Europe. To be sure, in its external action the United States has joined the UN and other countries in equating women's political participation with a strong democracy. 60 But then why has parity democracy not become a popular enterprise in the United States even among those most strongly committed to women's equality? More importantly, why is the underrepresentation of women in such domains not even perceived as a democratic deficit? In the remaining pages I am not going to discuss the more or less technical details that would make gender quotas to ensure a balanced representation of both sexes in all domains of public and private power difficult to implement, were they ever to be proposed. 6 1 Instead, I will tentatively explore the set of social, legal, historical and cultural fac60, See Nancy Millar, Envisioning a US Government that Isn't 84% Male: What the United States Can Learn from Sweden, Rwanda, Burundi and Other Nations, 62 U. MIAMI L. REV. 129, 132 (2007-2008) and Darren Rosenblum, Parity /Disparity: Electoral Gender Inequality on the Tightrope of Liberal Constitutional Traditions, 39
U.C. DAVIS L. REV. 1119, 1123 (2005-2006).

61. For instance, regarding electoral quotas, it seems clear that certain characteristics of the American electoral system would make the use of gender quotas more difficult including a majority based as opposed to a proportional representation system; the uninominal nature of electoral districts; and a decentralized and weaker party system that makes individual candidates, much more than political parties, true protagonists of the electoral race.

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tors that in my view make the project of parity citizenship unlikely to be seriously considered in the United States to start with. These factors can perhaps be best fleshed out by anticipating the most common reactions that the idea of mandatory political or corporate gender quotas would raise. A. Sexual Contract versus Racial Contract

One of the most striking differences between Europe and the United States seems to lie in the impossibility to discuss quotas for women in the United States without simultaneously addressing the political underrepresentation or disempowerment of blacks and other minorities. The European parity democracy model seems to rest on the assumption that the sexual contract is foundational to the modern state and needs to be disestablished, and that this distinguishes the political exclusion of women from that of other groups whose political exclusion is, so to say, not as foundational. This of course is more difficult to defend in a country where slavery and the inferior political status of blacks for representation purposes was, if not explicitly written into the Constitution, then at least acknowledged in its Apportionment Clause and the Fugitive Slave Clause of the Constitution. This had to be overcome by the Thirteenth, Fourteenth and Fifteenth Amendments, which directly shaped the Voting Rights Act and triggered redistricting with attention to the representation of racial minorities. Whereas women too, were excluded, their lack of representation was always an unspoken assumption rather than an explicit textual constitutional provision. Only when their explicit inclusion through the passage of the Nineteenth Amendment took place many years later, did the previous exclusion leave a documentary trail.62 Precisely because women's political exclusion was simply assumed, and did not even require an explicit sanctioning, one may argue that it has a distinct and even more pervasive history.6 3 Looking at the sexual contract only through the lenses of the racial contract may thus obscure the specificities as well as commonalities
62. In contrast, racial discrimination has left less of a constitutional trace in Europe where most constitutions mention race only as one of the grounds of prohibited discrimination along with others and where Europe's paradigmatic forms of racism, colonialism and anti-Semitism were territorially externalized and/or seen as part of the past. 63. See Reva B. Siegel, She the People: the Nineteenth Amendment, Sex Equality, Federalismand the Family, 115 HARv. L. REv. 1 (2002) (explaining how Americans who adopted the Reconstruction Amendments believed it was unnecessary to enfranchise women under the federal Constitution because women were represented in the state through male heads of household and that enfranchising women would harm the marriage relationship, and how the Nineteenth Amendment granting female suffrage challenged the family as a site of male governance in favor of women's full citizenship).

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of both and make it difficult to come up with an adequate interpretation of sex equality doctrine that places the emphasis on women's specific obstacles to equal citizenship linked to the prevalence of the separate spheres tradition.6 4 Yet such specificities regarding access to equal citizenship may have a bearing on the types of remedies that are designed for each. 6 5 Rather marginal voices have thus far defended the adoption of a Voting Rights Act for Women to institute quotas and other support mechanisms. 66 For the most part, the sex equality and political representation debates have not mixed in the United States. 67 Doctrinally, a synthetic interpretation of the Fourteenth and Nineteenth Amendments, like the one advocated by Reva Siegel, would allow to bring to the fore that the main purpose of sex equality doctrine must be to overcome the relegation of women to the family at the expense of the recognition of the full citizenship stature. 6 8 This interpretation could ground the power of Congress to enforce measures to overcome women's political underrepresentation under Section Five of the Fourteenth Amendment. Realistically, however, it seems unlikely that one could press for a gender parity democracy model in the United States without integrating some conception of racial parity democracy. This makes the project more daunting and less viable both theoretically and politically because the forces of racism and patriarchy would presumably join in opposing it. B. Women versus the Family

Another fascinating point of contrast that may explain why the parity democracy model would find more resistance in the United States than it does in Europe is the way conservative forces in the United States, often mobilized by Christian religious fundamentalism, have historically succeeded in presenting every instance of affirmation of women's rights and fight for equality as a threat to the family. This applies to women's campaign for suffrage; for the Equal Rights Amendment; for reproductive rights; and for the ratification of
64. Id. at 12. 65. Rosenblum, supra note 60, at 1132. 66. See Mary Becker, Patriarchyand Inequality: Towards a Substantive Feminism, 1999 U. CHI. LEGAL F. 21, 59 (1999). But see Rosenblum, supra note 60, at 1170, arguing in favor of more fluid remedies to avoid the essentializing consequences of quotas. Similarly, Jane Mansbridge, The Descriptive PoliticalRepresentation of Gender: An Anti-EssentialistArgument, in HAS LIBERALISM FAILED WOMEN, supra note 15, at 19-39. 67. Thus the two principal sources for sex discrimination law, the Fourteenth Amendment and the Civil Rights Act of 1964 do not address electoral exclusion. Remedies for political underrepresentation have centered on the dramatic exclusion of blacks from voting until the Civil Rights Movement succeeded in forcing passage of the Voting Rights Act of 1965. See Rosenblum, supra note 60, at 1127-29. 68. Siegel, supra note 63.

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CEDAW. 6 9 It is therefore most likely that the parity democracy model would first be constructed as a fundamental threat to the family, and, to the extent that it stems from a nation-wide project, also to federalism notions locating the family within the sphere of state jurisdiction; it would then be resisted on the exact same grounds as all other women's rights initiatives. In other words, it would probably be perceived as social engineering forcing women out of and men into the house, thereby challenging a presumed natural order of things. Constitutionally, both gender neutral readings of the Equal Protection Clause and privacy notions derived from the Fourteenth Amendment would probably be alleged to claim non-interference with the family. The irony is of course that the parity equality model purports to enhance the political and social recognition of the activities that so far mostly women perform in the so called private (family) domain. This is why resistance articulated precisely in the name of family values shows that what is truly at stake is the defense of an alleged natural order of things (i.e., preserving the sexual contract) and not the defense of care, human reproduction and interdependency. 7 0 In Europe, the parity measures have been defended as good for all (politics and corporations will be better off if the resources of both sexes are included, and society will be better off if both men and women can better reconcile family and work) or as a matter of justice to women whose equal rights and participation must define what democracy is fundamentally about. Thus, to the extent that the family has come into the discussion it is to claim the need for men's larger involvement in it or the likeliness that women's empowerment will translate into more family friendly policies. C. Individualism, Autonomy, Meritocracy and the Unencumbered Market Forces

Underlying the U.S. rejection of strict and mandatory gender quotas is of course the critical understanding that quotas on the basis of sex violate formal equality and a gender neutral reading of the Equal Protection Clause. This reflects an anticlassification reading of such provision that has gained strength over the competing an69. Siegel, supra note 63; Robert C. Post & Reva B. Siegel, Democratic Constitutionalism and Backlash, 42 HARv. C.R.-C.L. L. REv. 373 (2007); for an example of conservative arguments against a U.S. ratification of CEDAW, see the paper sponsored by The Heritage Foundation: Grace Smith Melton, CEDAW: How U.N. Interference ThreatensRights of American Women, BACKGROUNDER, no. 2227 (Jan. 9,
2009).

70. In this the analogy again with conservative forces proclaiming family values to defend pro-life positions but failing to give mothers (including single mothers) the public assistance they need is striking.

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tisubordination interpretation.7 1 To be sure, as discussed, strict quotas are not uncontroversial in Europe either because despite the prevalent substantive equality model and the application of indirect discrimination as a constitutional doctrine, the formal equality principle still exists forcing a proportionality analysis. Such analysis is more likely to succeed with regard to measures that are less invasive than strict quotas and closer to the ideal of ensuring equal opportunities but not equal results. As we saw, both France, with a formal equality constitutional tradition, and Italy, espousing a substantive equality logic, in the end required constitutional amendments before mandatory political quotas as well as corporate quotas could be enacted. 7 2 The greater resistance towards the enactment of legislative measures to ensure women's access to positions of power in both the political and the economic domains is also related to the stronger U.S. individualist tradition and its faith in both autonomy and meritocracy as expressed through the free functioning of the market and of social forces, including capital and political parties, that constitutional provisions such as First Amendment associational rights of political parties help to protect.7 3 In Europe, the social or welfare state tradition with its post-World War II constitutional embedding has less difficulty advancing the notion that political and economic imbalances of powers may require positive corrections by the State to protect the more vulnerable. Also in harmony with this social state tradition is the conceptualization of positions of power in political office and corporate governance not only as highly paid and recognized positions for which individuals must freely compete, but also as positions of social responsibility that might justify interference of otherwise constitutionally protected spheres of autonomy (such as freedom of enterprise or the autonomy of political parties) for the sake of ensuring a more egalitarian system and a more perfect democracy.7 4 If the social state has traditionally allowed such
71. For the antisubordination approach, see Owen M. Fiss, Groups and the Equal Protection Clause, 5 PHIL. & Pus. AFF. 107, 108, 157 (1976) and LAURENCE H. TRIBE, AMERICAN CONSTITUTIONAL LAw, 1514-21 (2d ed. 1988). Describing both traditions, see Jack Balkin & Reva Siegel, The American Civil Rights Tradition:Anticlassification or Antisubordination?, 58 U. MIAMI L. REV. 9 (2003). 72. This of course raises a separate question, which is the easiness or difficulty of constitutional amendments. In view of past experience showing the rarity of constitutional amendments in the United States, especially compared to European countries, it seems that a constitutional reform to enshrine parity democracy in the United States would most probably fail. 73. Several American scholars have argued that political parties' First Amendment rights would constitute the largest constitutional obstacles to gender electoral quotas. Rosenblum, supra note 60, at 1170 n.251 (citing relevant legal precedent) and Lisa Schnall, Comment, Party Parity:A Defense of the Democratic Party Equal Division Rule, 13 AM. U.J. GENDER Soc. POL'Y AND L. 381, 391-92 (2005); Millar, supra note 60, at 154-55. 74. Suk, supra note 37.

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interventions to address redistributive imbalances related to class hierarchies, then arguably a parity democracy model can do the same to disestablish sexual hierarchies. D. Anti-essentialism and Anti-stereotyping

One of the most interesting contrasts between Europe and the United States is the degree of controversy that gender quotas would stir up in the United States even among those who are otherwise considered the most committed to women's equality.7 5 Although some feminists in Europe have also questioned quotas, raising the concern about tokenism and paternalism, what seems to be most distinctively American is the deep concern with essentialism. In Europe, quotas have been defended both by those who believe that women can add a distinctive way of ruling (more collaborative, less competitive or ego driven) and those who sustain that this is ultimately irrelevant because the point is simply treating women as equal citizens. In contrast, in the United States, quotas would most likely be seen as rigid and essentializing, and the affirmation of the difference that women can make is likely to be controversial enough to prevent feminists of different strands from joining forces to support the initiative. The reasons that account for this utmost concern with essentializing women are probably several. For one thing, the U.S. sex antidiscrimination doctrine has been mostly concerned with fighting gender stereotypes in general, and those that confine the women to the home, perpetuate the breadwinner role, and limit women's ability to act as full citizens in particular.7 6 This has prevented this doctrine from allowing the law to accommodate women's differences, even if they can be statistically proven (like women doing more housework than men) and even if they can be interpreted not as inherent differences (i.e., expressive of women's essential and distinctive nature) but rather as differences that result from masculine norms such as
75. On the impasse of American feminism generated by the egalitarian and difference strands of feminism, see Nancy Fraser, Multiculturalism,Antiessentialism, and Radical Democracy: A Genealogy of the CurrentImpasse in Feminist Theory, in JusTICE INTERRUPTUs, supra note 6, at 175-77. 76. On the anti-stereotyping paradigm of U.S. antidiscrimination law, see Reva B. Siegel, Dignity and the Politics of Protection:Abortion Restrictions Under Casey/Carhart, 117 YALE L.J. 1694, 1774 (2008); Mary Anne Case, The Very Stereotype the Law Condemns: ConstitutionalSex DiscriminationLaw as a Quest for Perfect Proxies, 85 CORNELL L. REv. 1447, 1472 (2000); MARTHA A. FINEMAN, THE NEUTERED MOTHER, THE SEXUAL FAMILY AND OTHER TwENTY CENTURY TRAGEDIES 37 (1995) and RESHAPING THE WORK-FAMILY DEBATE, supra note 57, at 75. In contrast, the European
sex antidiscrimination model has thus far prioritized addressing women's real obsta-

cles by accommodating their sex-specificity, both social and biological, at the risk of perpetuating effects in terms of gender roles that this option may entail. See Julie Suk, Are Gender Stereotypes Bad for Women? Rethinking AntidiscriminationLaw and Work-Family Conflict, 110 COL. L. REv. 1, 16 (2010).

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those enshrining the separate spheres ideology.7 7 Given that reactionary movements resisting women's rights have relied precisely on the defense of the family, it is not surprising that there has been resistance towards defending women's rights and equality on the grounds of "family-related" specificities of women, whether natural or constructed. Also, in a state that can only be minimally relied upon to limit the powers of employers, granting women-specific rights that reflect their roles in care and reproduction is inevitably a double-edge sword.

VI. FINAL

THOUGHTS

In the end, we find the very assertion that women and women's presence can make a difference-an assertion without which quotas to ensure the balanced participation of women in positions of power can hardly be defended-to be much more controversial in the United States than in Europe. This is the case because it is inevitably taken as a claim about women's essential differences rather than about the enduring effects of the separate spheres ideology which the proclamation of formal equality has not been able to unsettle. And what the need for women's presence has come to reflect, at least in Europe, is the very fact that in more and more European societies a male-only government or male-only corporate world is increasingly perceived as a democratic deficit. While we are still a far cry from actually overcoming that deficit both in Europe and in the United States, this paper intends to suggest that, in some respects, Europe has moved in the right direction. Viewed from a European perspective, the path towards a parity democracy sex equality model in the United States seems to be filled with ideological and constitutional hurdles that seem much harder, albeit probably not impossible, to take. Yet parity citizenship cannot stop at gender quotas to empower women. Instead it requires quite a bit of social engineering and public spending if the care of others that women have thus far been providing "for free, in the private," is to gain in visibility, social respectability, and, at least in aspiration, equally shared by men. None of this seems likely unless economic production, consumption and the market are at least partly deprived from the unchallenged aura they have enjoyed in advanced market capitalist societies over the last decades. It remains to be seen whether a large-scale economic recession is what is needed to start embracing a more comprehensive vision of the human being and human welfare, challenging the hegemonic role of the "homo oeconomicus" as the

77. See WILLIAMS, supra note 57, at 114.

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paradigmatic citizen. Nothing less than challenging that role is needed for parity citizenship to become the new universal standard of citizenship.

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INTERNATIONAL POLICY ANALYSIS

Women on Board
The Norwegian Experience

AAGOTH STORVIK AND MARI TEIGEN June 2010

Norway was the first country to introduce a quota for women on company boards. Since its introduction in 2003, the number of women on board has reached 40 per cent as required by law. In several European countries, Germany being one of them, a debate has begun on how to increase the number of women in leading positions in business. The question of whether or not quota legislation is needed to reach this goal is highly contested. The Norwegian experience reveals that a quota is the key to a successful implementation. Not only does it create the pressure needed for fundamental change but it also triggers a public debate at the core of which are questions of gender equality in wider society.

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

Content
Executive summary . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The legal framework . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The economic set-up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The political arena . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Getting the ball rolling . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . A heated debate main arguments for and against the quota . . . . . . . . . . . . . . . . . . . . Step by step the political process . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Taking stock . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The many sides of change . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Sanctions the key to success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Major effects of the quota. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The economic performance of companies . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Women in management . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . The attitudes of managers . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Who are they? Characteristics of female board members . . . . . . . . . . . . . . . . . . . . . . . . The womens experience . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Lessons to learn . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . No quota, no success . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Did Norway go far enough? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Europe is catching up . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3 4 5 5 5 6 7 8 8 8 9 10 10 11 11 12 12 12 12 12

References . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

Executive summary
Norway was the first country to introduce a quota for women on company boards. Since its introduction in 2003, the number of women on board has reached 40 per cent as required by law. While initially, other European countries might have shrugged off this policy as yet another progressive and inclusive Scandinavian initiative, the Norwegian experience has since sparked off a Europe-wide debate about quotas and women in leading positions. Many countries have started discussing quotas nationally; and European Commissioner Viviane Reding has signalled that the EU could also address the issue. In Germany, the debate has centred on the question of whether or not a quota is needed to increase the number of women on supervisory and executive boards, and in leading positions in general. With this expertise, the Friedrich Ebert Stiftung provides a substantial input for the debate. Norwegian experts Mari Teigen and Aagoth Storvik help us understand how the quota came into being, why it was successful and which changes it has set in motion. These are the main lessons to learn: There was broad political support for the quota legislation by the conservative-centre government coalition as well as the oppositional Labour Party and Socialist Left Party. Norway witnessed an intense political and public debate leading up to the decision of the parliament. Supporters and opponents of the quota put forward arguments relating to equality / discrimination, diversity and the independence of companies. No sanctions, no success: The successful implementation of the quota was due mainly to sanctions, the toughest of which was the forced dissolution of noncompliant companies. When there were no sanctions in the initial phase, companies did not widely implement the policy on a voluntary basis.

Companies were given four years to meet the quota. A number of data bases was established for women to register and for companies to search for talents. The Norwegian employers association created a Female Future training programme that companies could join and send their employees to. Women are different: Women on Norwegian company boards are generally younger than their male colleagues and better educated. Men, more often than women, are owners and/or have no other occupation than their board membership. The skills profile of women, however, is more or less identical with that of their male colleagues. Although 40 per cent of board members were female by 2009, some facts have not changed: the majority of boards are still chaired by men and a mere 2 per cent of the CEOs of companies listed on the Oslo stock exchange are women. Seven years after it was passed, the quota is widely accepted in Norwegian politics and society. The employers association has not reported any problems and interviews with business leaders suggest that the policy is no longer controversial. There is, however, one thing that other countries should not emulate. The whole process, from the first government motion until the final implementation of the quota, took ten years! The Norwegian experience shows clearly that without a quota legislation, there will be no change. Once companies start recruiting more women for leadership positions, a widespread consensus emerges in business, politics and society as a whole. Well done, Norway!

Cilia Ebert-Libeskind Internationale Politikanalyse

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

The legal framework

This expertise focuses on the recent Norwegian quota amendment. It was passed in 2003 and regulates the gender composition of a wide spectrum of Norwegian company boards: public limited companies, state and municipality owned companies, as well as cooperative companies.1 The Companies Act (as amended in 2003): 611a. Requirement of representation of both genders on the board.2 (1) In the boards of publicly listed companies both genders should be represented, as follows: 1. Where there are two or three board members, both genders should be represented. 2. Where there are four or five board members, both genders should be represented with at least two members each. 3. Where there are six to eight board members, both genders should be represented with at least three members each. 4. Where there are nine or more members of the board, each gender should be represented with at least 40 per cent each. 5. Rules 1 to 4 also apply to the election of deputy members.3 Public listed companies have drawn the most attention, but the quota requirements also apply to the boards of state-owned and inter-municipal companies.4 Later, the regulations were expanded to include the boards of all municipal and cooperative companies. In addition, there
1. A cooperative company is a business organisation owned and operated by a group of individuals for their mutual benefit. The company is a legal entity, owned and democratically controlled by its members. Members often have a close association with the enterprise as producers or consumers of its products or services, or as its employees. Cooperatives often share their earnings with the membership as dividends, distributed in accordance with their participation in the enterprise, for example, in the form of patronage, instead of according to the value of their capital shareholdings (as is the case with a joint stock company). In Norway, this type of companies is common in food production, well-known examples including TINE, which produces and sells dairy products, and Coop, which sells groceries, primarily produce from Norwegian farms. 2. For the composition of the board see p. 5.

was an even more recent extension within the framework of the Local Government Act, which includes rules on the representation of both sexes on the boards of private limited companies, where municipalities own two-thirds or more of the shares. The Ministry of Local Government and Regional Development is responsible for implementing this Act. The amendments entered into force from 1 January 2010 with a two-year transitional period. The transitional period was established to give companies time to adjust. The quota requirements apply to all publicly owned enterprises (state-owned limited liability and public limited companies, state-owned enterprises, companies incorporated by special legislation and inter-municipal companies) and all public limited companies in the private sector. A public limited company (plc) is a company in which none of the members are personally liable for the companys debts. This type of company usually has many shareholders and is governed by fairly strict rules with regard to board composition and share capital. A company must be registered as a public limited company to be listed on the Oslo Stock Exchange. There are approximately 450 public limited companies in Norway. No rules have yet been proposed for privately owned limited liability companies. Private limited companies have less strict rules with regard to board composition and share capital than public limited companies. Most of these companies are small family enterprises with few owners and the owners are themselves board members. One reason for not extending the quota regulation to private limited companies is probably the belief that it would interfere too much with the autonomy of private ownership in small and medium-sized businesses. In such companies, private, personalized ownership is more significant than in public limited companies. The legislations concentration on public limited companies may also be seen as a first step, and the legislation may be extended if womens representation does not improve. In Norway, there are 164,000 private limited companies. Nevertheless, the requirement of at least 40 per cent of both genders in boardrooms today regulates central areas of Norwegian business life.5

3. The rules regarding representation of both sexes are to be applied separately to employee-elected and shareholder-elected representatives in order to ensure independent election processes. 4. Inter-municipal companies are publicly owned by two or more municipalities together.

5. See Heidenreich (2009, 2010) for information on the characteristics of the Norwegian ownership structure, and the role of different types of companies in the Norwegian economy.

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The economic set-up

In contrast to the situation in Continental Europe, Norwegian companies have only one board, constituting a so-called one-tier system (Hagen 2009: 67). This is a board of directors, consisting of owners representatives, but also employee-elected representatives. The task of management is delegated to the general manager (CEO). Every public limited company must have one, appointed by the board of directors. The general manager is responsible for day-to-day management. However, the board has the final responsibility for the management of the company, and the general manager must follow its guidelines and orders. The board is also supposed to ensure that business activities are carried out properly. The board must be kept informed of the companys financial position and is under an obligation to ensure that its activities, accounts and asset management are subject to adequate control. According to company law, public limited companies must have a board of directors. The board of directors should be of a certain size and composition: The board of directors must have at least three members. If the company has a corporate assembly, the board of directors must have at least five members. The board of directors itself shall elect its chair if the chair has not been elected by the general meeting. The general manager cannot be elected as chair of the board of directors. In addition to these requirements, the employees also have the right to elect board members under certain circumstances. The law states that: If a company with more than 30 employees does not have a corporate assembly a majority of the employees may demand that one member of the board of directors and an observer with alternates be elected by and from among the employees. If a company with more than 50 employees does not have a corporate assembly a majority of the employees may demand that up to one-third and at least two of the board members, with alternates, are to be elected from among the employees

If a company has more than 200 employees and it has been agreed that it will not have a corporate assembly the employees shall elect one member of the board of directors and an alternate member, or two observers with alternates, in addition to their representatives under the two previous subsections. If the company has a corporate assembly the employees may demand that up to one-third and at least two of the members of the board of directors, with alternates, be elected from among the employees, if one-third of the members of the corporate assembly demand it.

The political arena

Getting the ball rolling
In December 2003, the Norwegian Parliament amended the Companys Act, adding the requirement that at least 40 per cent of both genders be represented on company boards. This has applied to all publicly owned companies whether by the state or municipalities since January 2004. Such companies were allowed some time to adjust, but from January 2006 the rule applied to all newly established public limited companies, while from 2008 all public limited companies were subject to the quota requirement. The new quota legislation received broad political support in Parliament. It was proposed by the then Conservative-Centre government coalition (Bondevik II) and passed with support from the Labour Party and the Socialist Left Party. Only the representatives of the Progress Party voted against the reform. The political process, from the first government motion submitted by the Ministry of Children and Equality to the relevant consultative bodies6 in 1999 until it was fully implemented in 2008, lasted almost ten years. This reflects the considerable controversy that surrounded the issue, not least the fact that a quota regulation would breach the existing norms of Norwegian gender equality policy, which traditionally did not infringe on the private economic sphere.
6. The consultative bodies are typically the actors affected by the proposal within the public administration, as well as the social partners, trade and industry organisations, and a wide spectrum of civil society organisations.

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

The first step towards a regulation on the gender composition of corporate boards was made by the minority Centre government coalition (Bondevik I) in 1999, as part of a major revision of the Gender Equality Act.7 Partly due to the need to more thoroughly evaluate the legal aspects of such a quota regulation, the motion was excluded from the wider revision of the Gender Equality Act (Proposition to parliament No. 77, 2000/2001). Expert legal opinion suggested that such a quota law should be part of the Companies Act, not the Gender Equality Act. Simultaneously, the quota was changed from 25 per cent to 40 per cent, in harmony with the quota requirements applying to publicly appointed (that is, by a government ministry) boards and committees ( 21, Gender Equality Act, 1988). The adoption of a quota rule in the Companies Act was presented to Parliament by the new Conservative-Centre government coalition (Bondevik II) in 2003 (Proposition to parliament No. 97, 2002/2003), and passed the same year.

The justice argument

Proponents: The arguments formulated by the supporters of the quota legislation emphasised gender balance as a principle of justice. They underlined justice in the sense of redistribution of resources, claiming that positive discrimination is necessary in order to achieve gender equality. The heavy male domination on Norwegian corporate boards was posited as unacceptable, and as a possible indication of unfair gender discrimination. Opponents: The main counter-argument was that regulation of the gender composition of corporate boards would not be fair. Recruitment to corporate boards should not be based on the gender of candidates. The owners should have the right to select the candidates they find most suitable to sit on the board. Quota regulations were considered to be illegitimate unequal treatment and as discrimination against men.

A heated debate main arguments for and against the quota

The quota law was approved after a prolonged political process, including much political conflict, intense public debate and a great deal of media attention. Nevertheless, the law was approved by a large parliamentary majority. The debate was characterised by the polarisation of opponents and supporters8. The opponents were represented mainly by industrial managers and representatives of employers organisations, while the supporters were represented by politicians, often with key posts in the government. The supporting politicians came from a broad spectrum of political parties, mainly the Norwegian Labour Party (Arbeiderpartiet), the Conservative Party (Hyre) and the Christian Democratic Party (Kristelig Folkeparti) (Cvijanovic 2009). Three main types of argument were central to the debate, based on justice, skills and democracy.
7. The idea was to extend Article 21 of the Gender Equality Act to include all company boards, but with a 25 per cent quota for each gender, not the 40 per cent which applies to public limited company boards (Hringsbrev, Barne- og familiedepartementet, 1999). 8. A study by Teigen (2002) analysed the government consultative process in 1999 (statements of invited organisations), before the quota regulation was introduced. A study by Cvijanovic (2009) looked at the public debate over a ten-year period in two Norwegian national newspapers with a clear business profile, Aftenposten and Dagens Nringsliv.

The skills and utility argument

Proponents: This argument came in two versions. First, the human capital argument claimed that, since the total talent potential of a population is distributed fairly evenly between men and women, the extreme male dominance in corporate boards indicated underutilisation of womens skills. Boards tend to recruit only from the talent pool of the male population, while qualified and competent women candidates are not seriously considered. Second, the argument concerning the special contribution of women asserted the (organisational) advantages of integrating women. The claim is that gender differences in attitudes, experiences, interests and so on mean that more women on boards will provide new perspectives and ways of solving problems. One of the governments central arguments was that gender balance on boards will positively affect profitability, which is strongly connected to the positive skills argument. Opponents: The skills-related argument against quota reform was primarily that it would lead to less competent women replacing more competent men. The claim was that not enough women had the relevant experience, and that the recruitment of qualified women had to start earlier and further down the organisational hierarchy to

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

create a pool of well-qualified women. In addition, it was strongly asserted that owners are best qualified to select the most competent board members. It was also argued that foreign investors would be less inclined to invest in Norwegian firms as a result of the quota regulation. Supposedly, Norwegian companies would be considered less profitable as a consequence of the priority given to the gender ratio above the recruitment of the most competent and suitable board members.

The democracy argument

Proponents: The democracy argument was particularly prominent among the governments justifications for the quota legislation. It was argued that more gender-equal participation in economic decision-making was crucial for Norwegian democracy. A related argument concerns the importance of equal rights to participation in the boards of influential companies, where the state often is a major owner. Opponents: A main counterargument concerned economic democracy, in the sense of shareholders democracy. The claim was that the quota law would hinder owners democratic right to recruit candidates and, in particular, interfere with the election process at the shareholders meeting. Owners invest in their companies and risk their money; they should therefore have the right to decide who they want to represent them on the board. The regulation challenged established principles of autonomy based on ownership.

Though Minister Hauglands successor Laila Dvy kept up the pressure, it is the role of the Conservative Party Minister of Trade and Industry Ansgar Gabrielsen in the last stages of the political process that has been ascribed particular importance. He gave an interview to Norways largest-circulation newspaper Verdens Gang (22 February 2002), just before the governments final debate on the issue. In the interview, Gabrielsen said that he was sick and tired of the male dominance of business life.9 This move was probably especially important in that it helped to secure the support of more sceptical representatives of the Conservative Party in both government and Parliament, who were on the verge of voting against the law. An expressed resistance, on the other hand, might have undermined the basis for a broad majority in favour of the issue. The unusual political constellations with regard to this issue probably helped to erode opposition to the proposal, among other things because it was impossible to dismiss it as an attempt on the part of social democrats to regulate corporate life. As already mentioned, only the representatives of the Progress Party voted against the reform. In line with liberal economic doctrine they argued that free market competition is the best protection against discrimination and that a quota regulation itself can be seen as a form of discrimination (Cvijanovic 2009: 57). There were two main consultative processes on the quota legislation, which resulted in the new amendment to the Companies Act. A survey of the viewpoints of the different actors revealed that, on the proponents side, were employees organisations, representatives of ministries, directorates, the gender equality apparatus and so on. Womens organisations, however, were inactive. We can only speculate about why this should be, but it is possible that they saw the issue as primarily affecting elite women. However, womens organisations within the political parties were very active in promoting quota reform. The role of women within the Conservative Party was significant, particularly because the issue probably provoked considerable controversy. The quota law was also strongly promoted by the media, and in particular the tabloid press. At the last hearing in 1999 all trade unions were positive towards the new regulation, except for the lawyers association (Teigen 2002:86).
9. Available at: http://www.vg.no/nyheter/innenriks/artikkel.php?artid= 3024189.

Step by step the political process

The political process which led to the present quota law was initiated by the Minister for Gender Equality, Valgerd Svarstad Haugland of the Christian Democratic Party. She made the proposal for quotas on corporate boards at a hearing in 1999, in connection with a broader revision of the Gender Equality Act. The fact that an issue containing all the hallmarks of traditional social democratic policies with regard to both the type of measure and the desire to regulate private business was suggested by a Christian Democrat minister probably contributed to the emergence of a somewhat unusual framework for the debate. The proposal was innovative; nobody had suggested such a thing before.

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

Taking stock
Since the quota law was implemented it has generally not been much debated. A survey of the debate in the newspapers reveals that the law was most keenly discussed in 2002, the year before the amendment was voted on in the Norwegian Parliament. The debate also increased in 2005, the year before the regulation entered into force, but did not reach the same level as in 2002 (Cvijovic 2009:50). Since 2005 there has been little media debate. No opinion polls have been carried out and we therefore know little about public opinion on this matter. What is striking is that employers associations do not report problems even though the law has been in effect for several years. As already mentioned, all employers associations were against the new amendment before it was introduced, and some stated that it would be difficult to find competent women. The fact that such problems have not been reported to the employers associations might mean that the expected difficulties have not appeared. Neither owners nor CEOs have stated that they have had problems finding suitable female board members; having said that, this would reflect badly on the company, so it is not surprising.

that Norwegian company board rooms were men only zones, with women accounting for as little as between 2 and 4 per cent of board members. After proper statistical gathering commenced, the proportion of women gradually increased, rising to 6 per cent in 2002, 9 per cent in 2004, 12 per cent in 2005, 18 per cent in 2006, 25 per cent in 2007, 36 per cent in 2008, and finally 40 per cent in 2009 (Teigen 2008). The proportion of women has not increased above the 40 per cent limit, partly because companies where one gender represents less than 20 per cent of the employees are given some leeway in meeting the gender requirements. In addition, the number of small boards with three or fewer board members also has the effect of reducing the proportion of women. As already mentioned, such boards are required to have only one female member. Although the gender composition of corporate boards has changed rapidly, within boards a gender hierarchy persists. The chair is almost always a man. Only 5 per cent of chairs are women. Women managing directors / CEOs are also few in number: only 2 per cent of the managing directors / CEOs of the companies listed on the Oslo Stock Exchange are women. Of the top management of the largest companies only about 10 per cent are women (see Heidenreich 2009, 2010). All in all, it is probably too early to predict the future effects of the quota reform. Abbildung 2 Women in public limited company boards, total and chair (%) (register data)
80

The many sides of change

Abbildung 1 Women on the boards of public limited companies, 20022009 (%)
80

60

60

40 40 25 20 6 0 2002 2004 2005 2006 2007 2008 2009 9 18 12 36

40 40 25 20 6 0 3 2002 9 3 2004 Total 18 12 2 2005 Chair 2 2006 3 2007 5 5 36

2008

2009

Institutt for samfunnsforskning

Institutt for samfunnsforskning

The quota law has led to major changes in the gender composition of corporate boards.10 At the end of the 1990s, there were no reliable statistics on the proportion of women on boards of directors. However, it was clear
10. There are around 450 public limited companies in Norway, with about 2,400 board seats. These seats are filled by approximately 1,400 persons: 800 men and 600 women.

Sanctions the key to success

The successful implementation of the quota law is due mainly to the fairly tough sanctions. No new sanctions were introduced because the law in respect of which the quota regulation was an amendment already laid down adequate measures. The Companies Act applies identical

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

sanctions for breaches of its rules, with the ultimate sanction of forced dissolution11 if a company fails to establish a board in accordance with the law, despite several warnings. In addition, the Register will refuse to register a company board if its composition does not meet the statutory requirements, just as it refuses registration if the chief executive officer or auditor do not meet the legal requirements. According to the Company Registers report, all companies subject to the quota law currently meet the requirements. According to the Public Limited Companies Act, the Ministry of Trade and Industry may decide that a forced dissolution shall not be implemented because of a substantial public interest. In such cases, the company will have to pay a fine until it is in compliance with the law. Dissolution has been part of the legal system since 1977. Experience shows that most companies issued with warnings promptly correct the problem. This was also the case when the quota regulation was introduced. In January 2008, 77 public limited companies were in breach of the gender representation rules. These companies received a letter from the Brnnysund Registration Centre, giving them four weeks to comply. A press release from the Brnnysund Centre, dated 22 February 2008, states that 12 companies would be subject to a second four-week notice period. In April 2008 it was clear that none of the companies would be dissolved; however, some companies changed their legal status from public limited company to private limited company.

directorates, a third by the lawyers association and the fourth by the largest employers association. The two public databases were established in 1998 and 1999. Their mission was to get more women into leadership positions in general and onto boards of directors in particular. In one of the databases all women are entitled to register, while in the other they must take a course in board-related topics or have prior board experience. The latter also includes male candidates for board positions. The third database was established by the lawyers association in 2004 and was part of a programme also containing a network and courses in management and board work. A major reason behind this initiative was that the association saw lawyers skills as especially suitable for board and higher management positions. To join the network one had to be female and a lawyer. The fourth database, established by the largest employers association, has a somewhat different character from the others. The association initiated a programme called Female Future based on the idea that company managers should be a driving force for getting more women onto boards. The project does not recruit women candidates, but companies and CEOs / managing directors. The companies must commit themselves to the programme. They have to identify talented women and motivate them to take up management and board positions at the end of a two-year period. The companies sign a statement of intent which is binding for both the company and the women concerned. Within the framework of this programme, it is the enterprise which selects talented women from its own ranks. The latter have to attend mandatory courses and be registered in the database. The courses concentrate on management development, the role and task of the board of directors and network building in order to make women more visible, creating arenas in which women can meet. In addition, women are trained in presentation skills. The target group for the programme from 2003 to 2005 was companies which had to comply with the new quota regulation. All in all, 370 women from these public limited companies participated (reaching 1,070 women by the end of 2008). The programme remains active but only a few public limited companies still participate. Generally speaking, the participants are satisfied with the courses and networks, but are sceptical about the data-

Major effects of the quota

A number of databases have been developed, often in combination with specific programmes to qualify women for board positions. The aim was to publicise womens skills. Women interested in becoming board members can register their names and CVs with these databases, which can be searched by companies looking for someone to fill a board position. Four national databases have been established, as well as a number of smaller regional and sector-specific databases. We will here focus on the four national databases, which are the largest and best known. Two of the databases were established by state
11. Another reason for forced dissolution might be that a company has not submitted the mandatory annual reports to the Company Register on time.

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

bases. Others who have reviewed the databases have come to similar conclusions (see Moe 2009: 8688). Our own research also suggests that the effect of the databases has been limited (Heidenreich forthcoming). One reason for this appears to be that companies do not want to recruit board members that they do not know personally (Hetland 2007). With the exception of the female lawyers association, trade unions did not develop programmes or databases. The programme developed by the female lawyers association and the programme developed by the employers association seem to rest on the assumption that women lack the necessary competence to be board members. Both programmes are open only to women and, in addition, require that they attend special board-related courses. This assumption was also pointed out in the public debate when the programmes were established. It was stated that men had long been board members without having to attend courses to qualify for their positions.

Simkins and Simpson (2003) find that boards with at least two women perform better on Tobins Q13 and on economic performance (ROA) compared to firms with fewer women. Smith et al. (2006) use Danish data and examine the relationship between women in top executive jobs and on boards of directors and company performance. They find that the proportion of women in top management jobs tends to have positive effects on company performance, even after controlling for numerous characteristics of the firm and direction of causality. The results for women on boards are more mixed, depending on the measure of performance. Rose (2007) finds no relationship between Tobins Q and gender diversity on Danish boards, suggesting that the lack of impact might be explained by the fact that there are so few women on Danish boards (approximately 4 per cent), which might be too few to function as a critical mass. Another line of research to which Terjesen, Sealy and Singh (2009:330) refer is the immediate impact on the share price when a female director is appointed. Ding and Charoenwong (2004) present a study of Singapore firms and find a positive relationship, while Lee and James (2007) find for US firms a negative development in stock prices after a new female board director is appointed, compared to when a male board director is appointed. In a study of English firms Ryan and Haslam (2005) find that when a female director is appointed during a general economic downturn the share price increases, even if economic performance does not change. Haslam and Ryan (2008) use both objective, financial and stock-based measures. They find no relationship between womens presence on boards and financial measures of performance. However, they find a significantly negative relationship with the stock-based measure, measured by Tobins Q.

The economic performance of companies

The economic consequences of the law reform have yet to become clear. However, there is a large international economic literature that has analysed the relationship between women in leadership and on boards and the economic performance of firms. Still, there is no consensus about the direction and strength of these relationships (Terjesen, Sealy and Singh 2009). One key challenge is to isolate the causal effect. Some studies report correlations where the causality is not clear. Different types of measures of economic performance are used. In what follows, we provide a short overview of some of the more recent studies. Drawing on data on 112 American Fortune-listed firms, Erhardt, Werbel and Shrader (2003) examine the link between executive board diversity (25 per cent of nonwhites and females) and economic performance (ROA and ROI).12 They report a positive association with both financial indicators, suggesting that board diversity has a positive impact on company performance overall. In another American study of 797 Fortune 1000 firms, Carter,
12. ROA means return on assets, an indicator of how profitable a company is, related to its total assets. ROI means return on investment, a measure of the efficiency of investments.

Women in management
A recent survey of the gender composition of CEOs and the top management of listed companies reveals continuing male dominance: less than 2 per cent of the CEOs are women, and about 10 per cent of top management

13. Tobins Q shows the ratio between market value and replacement value.

10

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

(Heidenreich 2009). It is too early to conclude that the quota reform will lead to an increase in the presence of women in top management positions in Norwegian business life. Research on the presence of women on boards generally has found some effects. Nielsen and Huse (2010) find that in Norway, boards with women are better at strategic control. Brown, Brown and Anastasopoulos (2002) find that in Canada this type of board develops more formal procedures and guidelines. How women on boards influence work organisation has scarcely been studied. Two exceptions are Brown, Brown and Anastasopoulos (2002) and Billimoria (2006), who have looked at the situation in Canada and the USA. They find a positive relationship between the number of female board members and the number of female managers in a company. They argue that it is likely that having female board members results in more female managers, but acknowledge that the causation could be the other way around or work both ways (many female managers means that there are more women to choose board members from).

points in the same direction, with very few expressing discontent.

Who are they? Characteristics of female board members

As part of our research project we conducted a survey in autumn 2009. Our analyses are not yet finished, so we can present only a few preliminary trends. We sent out a questionnaire to all board members in public limited companies, with a 62 per cent response rate. The survey reveals almost complete male dominance among chairs of boards of directors, with a few more women among the deputy chairs. Female board members are generally younger than the men, and their educational level is somewhat higher. While 29 per cent of the men were over 60 years of age, only 6 per cent of women were in this age group; and while 36 per cent of female board members had a university education lasting six years or more, this was true of only 22 per cent of male board members. When it comes to areas of study there are only minor differences between male and female board members. Somewhat more men than women are educated in technical and natural sciences. If we look at occupations, there are some differences between male and female board members. Men more often state that they are owners as their main occupation or that board memberships are their main occupation. Female board members somewhat more often state that they are managers as their primary occupation, but the difference is not significant. However, an unpublished study by Ahren and Dittmar (2009) finds that the number of CEOs has decreased in Norwegian boards of public limited companies since the introduction of the new quota regulation. This finding indicates that the new female board members are seldom CEOs and more often are managers. If we look at all these findings together it appears that the reform has resulted in both gains and losses with regard to board members formal skills. While the new female board members have introduced more educational qualifications they seem to lack occupational skills. Their skills profile, understood in terms of type of education and type of occupation, seems more or less identical to their male colleagues, however.

The attitudes of managers

In the transitional period after the law was introduced, companies sent talented women from their companies to the Female Future programme. However, the number has now fallen to a trickle. It is not unlikely that many companies and managers see the quota rule as an unnecessary and bothersome regulation. However, both the public debate and interviews with business leaders indicate that the quota rule is generally accepted and is no longer the object of controversy. It seems that the fairly strong opposition to the quota law which arose before it was passed in Parliament has faded away. Many people express acceptance, and even satisfaction, with the new policy. This is particularly the case among women in the business sphere. A kind of conversion story seems typical, along the following lines: I used to be very critical of quotas, but today, after experiencing the changes going on in business life and in corporate boards in particular, it is now clear to me that this was an important and necessary move. The preliminary result from our recent survey of board members (see below)

11

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

Our study shows that in general female board members do not hold more public limited board memberships than their male colleagues. There is one minor exception to this trend; among board members who have four or more board memberships at public limited companies we find more women. Our survey shows that this applies to 1 per cent of male board members and 4 per cent of female board members. If we look at all types of corporate board membership, male public limited companies board members clearly have more board memberships than female board members.

ciple, as newspaper debates and earlier research have shown (Teigen 2002, Skjeie and Teigen 2003, Cvijovic 2009). In addition to this ideological resistance it is also likely that the quota regulation represented a practical inconvenience for public limited companies. It is likely that the owners regular networks for recruiting board members contained few women, and that they therefore initially experienced some difficulties in recruiting female board members. Only a moderate increase to 16 per cent female board members was achieved before 2006. This implies that it was very important that the law was made mandatory.

The womens experience Did Norway go far enough?

Lippold and Sandaker (2008) have researched womens experiences of their role on boards. The study includes women who were appointed board members as a result of the quota regulation, women serving on boards of public limited companies before the reform and women serving as board members in other types of companies. The study shows that female board members feel very welcome on boards and that they are held in high regard. Female board members are not afraid to speak their minds and they appreciate their position as board members. The study is somewhat more inconclusive regarding inclusion in networks, but a clear majority of female board members do not experience exclusion in this regard. A minority have some problems, but this could also be the case for male board members. These findings are also in line with the preliminary analysis of our own study. In addition to public companies, only a small group of private enterprises in Norway were targeted by the reform. How the scale of the reform has influenced the result is an interesting question. One could only speculate about what would have happened if all private companies both private and public limited companies had been targeted by the law. A much larger number of women would in this case have had to be recruited to board memberships. Would the pool of talented women have been large enough? It is worth noting that the companies where the quota regulation applies are generally more influential in the Norwegian economy. In 2004, each public limited company had sales of around 136 million euros, while each private limited company in general had sales of only 2 million euros (Heidenreich 2009: 222). The public limited companies are the most influential enterprises in Norway and therefore they are also likely to attract the most competent male board members who, one would think, would be the hardest to replace. It can be argued that, since all these companies managed to find women who are apparently able to replace male board members, it is likely that smaller and less influential companies might also succeed in doing so.

Lessons to learn
No quota, no success
Developments before the quota regulation came into effect can tell us something about the importance of the new regulation. Before the Norwegian Parliament passed an amendment to the Public Limited Companies Act in 2003, female board members made up only 6 per cent of the whole. When the amendment was introduced it was stated that it should not come into effect if the companies themselves raised the number of female board members to the demanded level. This did not happen, probably because of owners ideological resentment towards the quota regulation. The representatives of private business enterprises were against the law in prin-

Europe is catching up
When the Norwegian quota rule was introduced it was unique. Since its introduction, however, a process of diffusion seems to have got under way. All over Europe the Norwegian corporate board quota rule has sparked off debates on persistent male dominance in economic decision-making and the possibility of adopting similar quota

12

AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

arrangements: The Spanish government has made a commitment to achieving at least 40 per cent of each gender by 2015 (De Anca 2008); Iceland recently followed suit and will require companies with more than 50 employees to have at least 40 per cent of each gender represented on boards from 2013.14 Similar policies are also in the process of being either implemented or intensely debated in a large number of countries, including the Netherlands,15 France,16 Sweden and Germany. These ongoing debates and substantial steps towards imposing similar regulations in several European countries signal that the Norwegian quota legislation cannot be dismissed as just another distinctive Norwegian gender equality invention, with little relevance outside Norway. Thus it is urgent that we be able to explain how the idea to legally regulate the gender composition of corporate boards came about and what kind of political processes resulted in the laws passage through Parliament and successful implementation. In particular, the law calls attention to possible movements in the interface between the political and the economic spheres: how strong is the autonomy of private capital with regard to state interference? Against the background of the ongoing debates in several European countries, it is important to note that, even though the distinct national processes were decisive for the first establishment of a quota law to regulate the gender composition of corporate boards, they are not necessary for the diffusion of similar regulations in other countries. Variation in the adoption of such legislation in other countries should probably be understood as facilitated by the extent to which aspects of the law, and the context of the law, resonate in the distinct political processes of different countries.

14. Available at: http://www.nikk.no/?module=Articles;action=Article. publicShow;ID=1054 15. In December 2009 the Dutch government decided that at least 30 per cent of the board members of all companies with more than 250 employees should be women. If this goal is not reached by 2016, companies must prepare a plan on how they intend to achieve it. Whether this will be implemented or not has not yet been confirmed, however. 16. Available at: http://www.toutpourlesfemmes.com/conseil/IMG/pdf/ egalite-hommes-femmes.pdf

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AAGOTH STORVIK AND MARI TEIGEN | WOMEN ON BOARD

References
Ahren, K. R. and A. K. Dittmar (2009): The changing of the boards: The value effect of a massive exogenous shock, unpublished manuscript. University of Michigan. Billimoria, D. (2006): The relationship between women corporate directors and women corporate officers, Journal of Managerial Issues, 18 (1): 4761. Brown, A.H., D. L. Brown and V. Anatasopoulos (2002): Women on boards. Not just the right thing but the bright thing. Conference Board of Canada, Report, May. Carter, D., B. Simkins and G. Simpson (2003): Corporate governance, board diversity and firm value, Financial Review, 38: 3335. Cvijanovic, A. I. (2009): Rettferdig og rimelig? Om kjnnskvotering til styrene i allmennaksjeselskap. Mastergradsoppgave i politikk og samfunnsendring, Hgskolen i Bod. Ding, D. and C. Charoenwong (2004): Women on board: is it boon or bane?, working paper presented at the 2004 FMA European Conference, Zrich, June. Erhardt, N., J. Werbel and C. Shrader (2003): Board of director diversity and firm financial performance, Corporate Governance: An International Review, 11 (2): 10211. Hagen, I. M. (2010): Det mektige mindretallet. Ansattes representasjon i styret mellom Corporate Governance og Industrial Relations. Fafo-rapport 2010:02. Haslam, S. and M. K. Ryan (2008): The road to the glass cliff: Differences in the perceived suitability of men and women for leadership positions in succeeding and failing organizations, Leadership Quarterly, 19 (5): 53046. Heidenreich, V. (2009): Kjnn og makt i norsk nringsliv, in K. Niskanen and A. Nyberg (eds), Kn och makt i Norden. Del1, Landsrapport, Tema Nord, 569: 219249. Kbenhavn: Nordisk ministerrd. Heidenreich, V. (forthcoming 2010): Womens ways to board positions in Norwegian public limited companies. Hetland, A. (2007): Betydningen av kjnn og nettverk i styrerekruttering. En kvalitativ studie av rekrutteringsprosesser til styrer i allmennaksjeselskaper. Hovedfagsoppgave i sosiologi, Institutt for sosiologi og samfunnsgeografi, Universitetet i Oslo, vren 2007. Lippold, M. and M. Sandaker (2008): Kvinner i styrer selskapsdamer eller fullverdige medlemmer? Universitetet for milj- og biovitenskap, institutt for konomi og ressursforvaltning, masteroppgave. Moe, H. (2009): Hvis databaser er svaret hva er da sprsmlet? En studie av fire organisasjoners prosjekter for bedre rekrutteringen av kvinner til styrer og ledelse. Mastergradsoppgave ved Institutt for sosiologi og samfunnsgeografi, Universitetet i Oslo, vren 2009. Nielsen, S. and M. Huse (forthcoming 2010): The contribution of women on boards of directors: going beyond the surface, Corporate Governance: An International Review. Rose, C. (2007): Does female board representation influence firm performance? The Danish evidence, Corporate Governance: An International Review 15 (2): 40413. Ryan, M. K. and S. A. Haslam (2005): The glass cliff: exploring the dynamics in the appointment of women to precarious leadership positions, Academy of Management Review 32 (2): 549572. Skjeie, H. and M. Teigen (2003): Menn i mellom. Mannsdominans og likestillingspolitikk. Makt- og demokratiutredningen. Oslo: Gyldendal Akademiske. Smith, N., V. Smith and M. Verner (2006): Do women in top management affect firm performance? A panel study of 2500 Danish firms, International Journal of Productivity & Performance Management, 55: 569593. Storvik, A. (forthcoming 2010): Ikke nok kompetente kvinner? ASA-reformens konsekvenser for styrearbeid. Teigen, M. (2002): Kvotering til styreverv mellom offentlig regulering og privat handlefrihet, Tidsskrift for samfunnsforskning, 1: 73104. Teigen, M. (2008): Norwegian quota policies, paper presented at the Nineteenth Meeting of the Helsinki group on Women and Science, Brussels, 45 November, ISF paper 2008:12. Terjesen, S., R. Sealy and V. Singh (2009): Women directors on corporate boards: a review and research agenda, Corporate Governance: An International Review,17 (3): 320337.

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About the authors Aagoth Storvik is a senior researcher at the Institutt for Samfunnsforskning (Institute for Social Research) in Oslo. Her background is in sociology and her fields of interests are gender, management, political elites, and company boards. Mari Teigen is director of research at the Institutt for Samfunnsforskning (Institute for Social Research) in Oslo. She is a sociologist and has focused on the areas of gender studies, intersectionality, positive action / quota policies. Mari is currently in charge of a research project funded by the Research Council of Norway evaluating the gender quota for company boards in Norway.

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The views expressed in this publication are not necessarily those of the Friedrich-Ebert-Stiftung or of the organization for which the author works. This publication is printed on paper from sustainable forestry.

ISBN 978-3-86872-381-6

Global Database of Quotas for Women, available at http://www.quotaproject.org/uid/countryview.cfm?country=165.

At a glance
Structure of Parliament: Unicameral

Are there legislated quotas...

No for the Single/Lower House? No at the Sub-national level?

Are there voluntary quotas...

Yes adopted by political parties?

Norway
(Kingdom of Norway)

SINGLE/LOWER HOUSE

Stortinget / Parliament
Total seats: 169

Total women:

67

% women:

40%

Election year:

2009

Electoral system:

List PR

Quota type:

Voluntary Political Party Quotas

Election details:

IDEA Voter Turnout IPU Parline

Sources | Additional information | Contact us

Last updated 2010-07-08

Voluntary Political Party Quotas*

Party Acronym Official Name Details, Quota provisions

Socialist Left Party Norwegian Labour Party

SV

Sosialistisk Venstreparti Det Norske Arbeiderparti

Since 1975, SV has had a 40 percent quota for both sexes on electoral lists (Freidenvall, et. al. 2006, p. 71).

In all election lists there is a 50 percent quota for both sexes, and both sexes shall be represented in the first two positions (Party Constitution, 12:9). Quotas first used in 1983 (Matland 2005). There is a 40 percent quota for either sex in all elections and nominations, since 1989 (Laws of the Centre Party, 4:4). KrF has had a 40 percent quota for both sexes since 1993 (Freidenvall, et. al. 2006, p. 71).

DNA

Centre Party Christian People's Party

SP

Senterpartiet Kristelig Folkeparti

KrF

* Only political parties represented in parliament are included. In case of legislated quotas, only political parties that have quotas beyond the national quota legislation are presented in this table. Sources | Additional information | Contact us Last updated 2009-11-18

Additional information
No additional information available

Sources
Matland, Richard E. (2005), ?The Norwegian Experience of Gender Quotas?, in The Implementation of Quotas: European Experiences, Quotas Report Series no. 4, Julie Ballington & Francesca Binda (eds), Stockholm: International IDEA

Freidenvall, Lenita; Dahlerup, Drude & Skjeie, Hege (2006), ?The Nordic Countries: an incremental model?, in Women, Quotas and Politics, Drude Dahlerup (ed.), New York: Routledge Party Constitution of Norwegian Labour Party, 2009 (Arbeiderpartiets vedtekter) Laws of the Centre Party, amended 2007 (Senterpartiets lover)

A Changed Court Revisits Affirmative Action in College Admissions -...

http://www.nytimes.com/2012/10/11/us/a-changed-court-revisits-affirmat...

October 10, 2012

By ADAM LIPTAK

WASHINGTON With the future of affirmative action in higher education hanging in the balance, the Supreme Court on Wednesday grappled with two basic questions, repeated by Chief Justice John G. Roberts Jr. in various forms at least a dozen times. He wanted to know how much diversity was enough. And he wanted to know when colleges would be able to achieve an acceptable level of diversity without using racial preferences. What is the critical mass of African-Americans and Hispanics at the university that you are working toward? Chief Justice Roberts asked a lawyer for the University of Texas at Austin. The chief justice never received a specific answer from the universitys lawyer or from one representing the federal government. Their reluctance to answer illuminated a tension in the courts precedents, which reject quotas but allow public universities to use race in admissions decisions as but one unquantifiable factor among many. Had the lawyers responded to the chief justice by proposing a percentage goal, they would have run headlong into cases prohibiting quotas. In failing to offer a number, though, they left the court with very little to do in the face of precedents requiring judges to look closely whenever the government draws distinctions among people based on race. You wont tell me what the critical mass is, Chief Justice Roberts told the universitys lawyer, Gregory G. Garre. How am I supposed to do the job that our precedents say I should do? The questioning on Wednesday from the chief justice and his colleagues was by turns caustic, exasperated and despairing. Justice Sandra Day OConnor, who retired in 2006, attended the argument and listened attentively as her former colleagues debated whether to reaffirm, limit or overturn one of her legacies, her majority opinion in Grutter v. Bollinger, the 5-to-4 decision in 2003 that allowed public universities to take account of race as part of a holistic review. Her replacement by Justice Samuel A. Alito Jr., who has been hostile to affirmative action

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A Changed Court Revisits Affirmative Action in College Admissions -...

http://www.nytimes.com/2012/10/11/us/a-changed-court-revisits-affirmat...

programs, may have altered the balance on the court on whether such admissions programs are constitutional. The member of the court who now probably holds the decisive vote, Justice Anthony M. Kennedy, tipped his hand only a little, asking a few questions that indicated discomfort with at least some race-conscious admissions programs. Those questions, along with his voting record, suggested that Justice Kennedy may be prepared to limit the Grutter decision. He told Mr. Garre that he was uncomfortable with the universitys efforts to attract minority students from privileged backgrounds. What youre saying, Justice Kennedy said, is that what counts is race above all. He asked a lawyer for Abigail Fisher, a white woman who was denied admission to the university and who filed the lawsuit before the justices, whether the modest racial preferences used by the university crossed a constitutional line. Then he proposed an answer to his own question. Are you saying that you shouldnt impose this hurt or this injury, generally, for so little benefit? he asked. Justice Sonia Sotomayor summarized the central question in the case, echoing Chief Justice Roberts. At what point when do we stop deferring to the universitys judgment that race is still necessary? she asked. Thats the bottom line of this case. In the 2003 decision, Justice OConnor wrote that she expected it to stand for 25 years. I know that time flies, Justice Stephen G. Breyer said on Wednesday, but I think only nine of those years have passed. By the conclusion of the argument, it seemed tolerably clear that the four members of the courts conservative wing were ready to act now to revise the Grutter decision. The courts more liberal members said there was no reason to abandon the earlier framework. What is it were going to say here that wasnt already said in Grutter? Justice Breyer asked. Justice Elena Kagan disqualified herself from the case, Fisher v. Texas No. 11-345, presumably because she had worked on the case as solicitor general. That leaves open the possibility of a 4-to-4 tie, which would have the effect of affirming a lower-court decision upholding the Texas program. Ms. Fisher, 22, recently graduated from Louisiana State University and works as a financial analyst in Austin, Tex. Her lawyer, Bert W. Rein, was questioned closely by the more liberal justices about whether she suffered the sort of injury that gives her standing to sue. They also pressed the point that the Texas program should pass muster under the 2003 decision.

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A Changed Court Revisits Affirmative Action in College Admissions -...

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It seems to me that this program is no more aggressive than the one in Grutter, Justice Ruth Bader Ginsburg said. In fact, its more modest. Three-quarters of applicants from Texas are admitted to the university under a program that guarantees admission to the top students in every high school in the state. That program, which has produced substantial diversity, is not directly at issue in the case. Students from Texas who missed the cutoff, like Ms. Fisher, and those from elsewhere are considered under standards that take account of academic achievement and other factors, including race and ethnicity. Mr. Garre said the percentage program worked to create diversity only because by and large, the minorities who are admitted tend to come from segregated racially-identifiable schools. Justice Alito responded by questioning a passage in Mr. Garres brief, in which he told the justices that the university should be free to supplement that pool with more privileged minority students, thus increasing diversity within diversity. I thought that the whole purpose of affirmative action was to help students who come from underprivileged backgrounds, Justice Alito said. Justice Kennedy also seemed taken aback by the approach. You want underprivileged of a certain race and privileged of a certain race, Justice Kennedy told Mr. Garre. So thats race. A decision forbidding the use of race at public universities would almost certainly mean that it would be barred at most private ones as well under Title VI of the Civil Rights Act of 1964, which forbids racial discrimination in programs that receive federal money. Justice Sotomayor told Mr. Rein, the lawyer representing Ms. Fisher, that she sensed an agenda. You dont want to overrule Grutter, she said. You just want to gut it.

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