Constitutional provisions on the equality of women and men: A comparative analysis in Latin America and Spain

Abstract

The configuration of equality in contemporary constitutionalism serves as a parameter or indicator of coherence in ostensibly egalitarian democratic systems. This article presents an analysis of the juridification of specific provisions regarding gender equality in the Constitutions of Latin America and Spain. To this end, it examines their presence or integration in the motivational declarations represented by the Preambles, their consideration as a supreme value within the legal system, their formal content - reminiscent of early constitutionalism - and the formulation of the anti-discrimination principle as an expression of a general mandate against arbitrary or differential treatment. Furthermore, this treatment is linked to the recognition of a substantive content that transitions from equal treatment to substantive equality and is configured as an aspirational challenge in a social state that justifies and legitimizes differential treatment as long as if is objective and reasonable. It is worth noting that, to date, in the territorial scope under study, only five Constitutions include a specific provision obliging the promotion of material equality between women and men, and four include such a provision without explicit mention of specific groups or recipients, as in the case of Spain. In summary, this article offers a comparative analysis that allows the identification of how equality is addressed in contemporary constitutionalism, as well as subjective areas of application, contemplated measures or public policies, competency attribution for the same, and specific formulations in its recognition. A study that not only provides a map of the constitutional configuration of the right to equality in the territorial scope under study but also offers a diagnosis of the different constitutional formulas that have transformed the content and scope of the right to equality, as well as the treatment of equality in the Spanish Constitution from a comparative perspective.

Summary: 1. Introduction. 2. Equality between Women and Men as a Guiding or Interpretive Principle of the Legal System. 3. The Enshrinement of Formal Equality. 4. The Principle of Non-Discrimination and the Prohibition of Unequal Treatment. 5. The Constitutionalization of the Aspirational Challenge of Material Equality. 6. Conclusions.