Decision No. 13 of 27 July 2018 on Constitutional Case No. 3/2018
Referring Authority and Subject Matter of the Case
The case was initiated upon a request by 75 Members of Parliament of the 44th National Assembly. The Constitutional Court has been seized with a request to rule on the compatibility with the Constitution, prior to ratification, of an international treaty concluded by the Republic of Bulgaria on 21 April 2016 - namely, the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence (the Convention), drawn up on 11 May 2011 in Istanbul.
Summary of the Court’s Reasoning
The Convention employs two distinct notions of sex - “sex” and “gender.” The expression “gender identity” stems from the idea that the social dimension of sex is independent of the biological one. The departure from the concept of “sex” as a biological characteristic - male/female - distances the Convention from its stated objectives of protecting women from all forms of violence. This dual-layered conceptual framework, and the meaning embedded in the terms used, does not in practice lead to the attainment of equality between the sexes; rather, it blurs the distinctions between them, thereby depriving the principle of equality of its substantive content.
Legal equality between the sexes is proclaimed at the constitutional level in Article 6, paragraph 2 of the Fundamental Law. It does not entail identical treatment of the two sexes, but requires due regard for their biological characteristics and differences. Sex is among the expressly enumerated grounds in Article 6, paragraph 2 of the Constitution on the basis of which neither privileges nor restrictions of rights are permitted (Decision No. 1 of 27 January 2005 on Constitutional Case No. 8/2004). The constitutional provision treats biological sex as a concept with a clear and determinate legal meaning.
The Constitution, as well as the entirety of Bulgarian legislation, is founded upon the understanding of the binary existence of the human species. The Constitution unequivocally embraces the social dimension of sex in connection with, and in interaction with, its biologically determined aspect - Article 47, paragraph 2 of the Fundamental Law. In this constitutional provision, the biological sex “female” is linked to the social role of “mother,” to “childbirth,” and to “obstetric care.” In sum, the concept of “sex” is employed by the constituent authority as a unity of the biologically determined and the socially constructed. The Constitution does not establish a notion of social gender independent of biological sex, as envisaged by the Convention.
The constitutional regulation of marriage is built upon the understanding of the existence of two biologically determined sexes - male and female. By defining marriage as a voluntary union between a man and a woman, the Constitution elevates the difference in biological sex to an imperative requirement for those entering into marriage. The conception of marriage as a union between a man and a woman is deeply rooted in Bulgarian legal consciousness and, in this sense, underpins the constitutional framework.
Contrary to the constitutional understanding of sex as a biological category, the notion of “gender”/“genre” (“пол”), as a social construct, appears in the Convention separately and alongside the concept of “sex”/“sexe.”
The rule of law, in its formal sense (as a state grounded in legal certainty), requires that the content of legal concepts be clear and unambiguous. The requirement of legal certainty and foreseeability does not permit the existence of two parallel and mutually exclusive notions of “sex.” The ratification of the Convention would result in the introduction into the national legal order of a concept that contradicts the one established by the Constitution.
The Constitutional Court holds that the Convention, by virtue of the provisions of Article 3(c) and Article 4, paragraph 3, which are determinative for the meaning of the international treaty as a whole, is not compatible with the Constitution. It is precisely with regard to these provisions that the Convention does not allow reservations. The Constitutional Court emphasizes that, once ratified, promulgated, and entered into force for the Republic of Bulgaria, this international treaty, pursuant to Article 5, paragraph 4 of the Fundamental Law, becomes incorporated into the domestic legal order and is applied with precedence over any conflicting provisions of national legislation (Decision No. 7 of 2 July 1992 on Constitutional Case No. 6/1992).
Grounds for the Ruling and Disposition
Pursuant to Article 149, paragraph 1, item 4, first limb of the Constitution (the competence to rule on the compatibility of international treaties concluded by the Republic of Bulgaria with the Constitution prior to their ratification), the Constitutional Court holds that the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, drawn up on 11 May 2011 in Istanbul and signed by the Republic of Bulgaria on 21 April 2016, is not compatible with the Constitution of the Republic of Bulgaria.
The decision was signed with a dissenting opinion by four constitutional judges.