1. Introduction ^{Footnote 1}

The importation of gender into constitutionalism has been the focus of a growing number of studies over the past couple of years. ^{Footnote 2} From the discipline of law, a feminist perspective has been deployed to rethink and critically appraise normative tenets of constitutional law that are variably underpinned by fundamental gender imbalances, and even to challenge and redefine the very idea of constitutionalism. ^{Footnote 3} From a political perspective, constitutions form structures of opportunity that define the normative parameters and influence the organizational strategies for pursuing gender equality reform and social change. ^{Footnote 4} Scholars have explored the spread of women mobilizing through lobbying, litigation, or other forms of action to influence the drafting or reform of constitutions, and to change the scope and meaning of sex equality norms. ^{Footnote 5} They have pursued constitutional reforms and raised related claims to fight against employment discrimination, political underrepresentation, military service discrimination, and pregnancy, among others. Even though feminists have pointed out the limitations of constitutional reform and a rights approach, they have recognized it as an indispensable component of a multipronged strategy to promote more equitable gender relations. ^{Footnote 6} Constitutions are the foundations of legal systems around the world, they shape fundamental assumptions about rights and citizenship, and they form the parameters for the judicial interpretation and protection of rights. ^{Footnote 7}

Most constitutions around the world, especially if they have been recently drafted, include provisions that guarantee equality between men and women and explicitly prohibit discrimination. ^{Footnote 8} Even where they do not explicitly do so (e.g., the United States or Australia), the constitutional right to gender equality is entrenched in the courts’ jurisprudence. ^{Footnote 9} A crucial element that distinguishes constitutions is the extent to which they endorse a substantive conception of equality as opposed to a strictly formal view of it. ^{Footnote 10} Substantive equality is premised on the need for law to redress the underlying sources of discrimination and hierarchy in order to promote greater equality of results, rather than to merely insure equal opportunities as starting conditions. It requires delving into and uncovering the entrenched social and cultural assumptions about distinct and/or unequal gender roles that are often embedded in seemingly neutral laws and institutions. Treating women and men the same, as required by formal equality, overlooks the underlying structures that differentiate and disadvantage women, and it may actually exacerbate, instead of alleviating, social disparities. Therefore, a substantive equality approach variably prescribes schemes of differential treatment and/or positive action aimed at creating the underlying conditions that in practice make equal opportunities available and accessible to men and women alike. Such schemes, however, reveal the limits of, and come into conflict with, a formal conception of equality that is entrenched in many constitutions.

This article explores the factors and processes that have contributed to the wave of constitutional and statutory reforms towards substantive equality in several EU countries. The appeal of a substantive equality approach to redress social disadvantages is reflected in the spread and growing legitimacy of positive measures. Over the past fifteen years, the idea of positive measures to tackle the structural roots of gender inequality (but also of discrimination on other grounds such as race, ethnicity, and disability, among others) has increasingly gained currency in Europe. Constitutional and statutory reforms in a number of countries have allowed for the adoption of positive measures, or for recognizing their legitimacy and necessity as a means to achieve equality in practice for members of groups that are socially, economically, or politically disadvantaged. ^{Footnote 11} The wave of such reforms in EU states since the 1990s arguably reflects a deepening in the understanding of gender equality in Europe, in contrast with the rejection of affirmative action in the United States. ^{Footnote 12}

In regard to gender, constitutional and statutory reforms espousing substantive equality have often taken place at least in part in connection with the goal of introducing some form of quotas. For example, in France (where a 1999 constitutional reform paved the way for the introduction of parity law) and Italy, the road to positive measures as the crux of a substantive conception of equality has had to pass through constitutional reform. ^{Footnote 13} Quotas are a particular, if not exemplary, instance of positive action aimed to promote women’s participation and representation in various employment sectors, in political decision-making structures, and in corporate management structures of public companies. In countries such as France, Belgium, Slovenia, and Spain, but also the United Kingdom and Poland among others, laws to this end have provided for some form of legislated quotas or voluntary candidate quotas in political parties, a minimum number of seats or candidate posts that must be filled by women. ^{Footnote 14}

The appeal of a substantive equality approach along with that of positive action at the national level has gone hand in hand with its endorsement at the EU level. Notwithstanding a contradictory and for the most part restrictive approach of the European Court of Justice (ECJ) on quotas and positive measures, ^{Footnote 15} the Amsterdam Treaty for the first time allowed member states to adopt positive discrimination measures (Art. 114(4)). While it presented a potentially more expansive and positive formulation than the one contained in the original Equal Treatment Directive (ETD) from the 1970s, the scope for gender-related positive action as interpreted by the ECJ did not significantly increase. At the same time, the Treaty of Amsterdam (Art. 114(4)) extended positive action to grounds such as race and ethnicity. ^{Footnote 16} In light of the fact that EU law does not oblige member states to adopt positive measures, their scope and nature greatly varies across states, along with the extent to which national legislation imposes duties on organizations to adopt such measures.

Considering their incompatibility with entrenched conceptions of formal equality contained in most constitutions, the growing acceptance of positive measures in Europe is a notable development. What factors have led to constitutional and statutory reforms towards a substantive equality approach and positive action measures as the most promising means to realizing it? What is the influence of the EU here? And what are the effects of gender constitutional reform for legal, social, and policy change regarding equality between men and women? This article explores these questions by specifically focusing on the case of Greece. The country’s democratic constitution included for the first time in 1974 a sex equality provision alongside the general equality clause that was carried on from the 1952 post-war constitution. The gender-specific provision stated that “Greek men and women have equal rights and equal obligations” (Art. 4, parag. 2). ^{Footnote 17} Since then, Greek courts have interpreted the constitutional norm of gender equality in a large body of case law, often in conjunction with the EC Equal Pay and Equal Treatment Directives. They espoused a formal conception of equality that ruled out any kind of preferential measures.

By the end of the 1990s, however, and in the frame of the constitutional revision process that was under way in the late 1990s, the Greek government agreed to an amendment that expressly stipulated that positive measures do not constitute gender discrimination but may be necessary in order to achieve substantive equality (Art. 116, parag. 2). The way for this amendment had already been paved by a shift in the constitutional jurisprudence of the Council of the State (CoS) in the second half of the 1990s that departed from its earlier approach to preferential treatment as a violation of gender equality. In a country traditionally characterized by strong judicial reluctance to embrace fundamental rights issues, and by the promptness of judges, including those of higher courts, to defend even vague notions of public interest, such a shift in the CoS jurisprudence was not what would normally be anticipated. Indeed, it was an exceptional instance of rights-expansive interpretation through judicial assertion in the review of existing legislation. ^{Footnote 18} The 2001 constitutional amendment was greeted as a major turning point. It paved the way for the introduction of positive measures to redress inequalities by “elevating substantive [and not only legal and nominal] equality into a constitutional principle.” ^{Footnote 19} Considering the fact that the 1974 constitution had ruled out positive measures as contrary to equality and that courts had opposed these until the 1990s, what led to the 2001 constitutional amendment allowing the government to introduce such measures?

To be sure, significant legal and constitutional reforms to advance gender equality were undertaken already from the mid-1970s onwards, and particularly in the 1980s, which were decisively influenced by accession to the EC in 1981. The first part of this article depicts the legal-constitutional reforms with regard to gender equality after 1975, and the evolution of the respective norms in the case law of higher courts that marked a turning point in the second half of the 1990s. The second section of the article depicts and analyzes the processes of feminist mobilization that unfolded in the second half of the 1990s. These combined litigation, advocacy, and lobbying, and were specifically influenced and shaped by the multi-level system of EU law and governance. This study is based on examination of the relevant case law of Greece’s higher courts, legal and policy documents, as well as on material obtained through interviews and from the memoirs of women who were involved in the campaign. It argues that legal mobilization processes were crucial in “importing” and diffusing at the national level the growing appeal of positive measures evidenced in the EU and international equality norms. Combined with the social activism of individual lawyers and women’s organizations, they decisively contributed to the relevant shifts in judicial interpretation, and eventually to the 2001 constitutional reform that recognized positive measures as legitimate.

2. Gender equality from democratization to the 2001 constitutional reform

A process of slowly abolishing some of the most glaring inequalities against women in Greece had already begun in the early 1950s following their participation in the resistance and the civil war in the previous decade that had enhanced women’s position. ^{Footnote 20} Yet it was not until 1974 that the first Greek constitution following the end of the seven-year dictatorship made a substantial leap forward and expressly recognized equality between the two sexes. Its constitutional recognition meant that all laws that did not comply with the principle of equality would have to be abolished during the following transitional seven-year period (that is, by the end of 1982; Art. 116 (1) of the constitution). While it was a response to the democratic—including feminist—demands that suffused the political landscape after the fall of the junta, it was also influenced by the country’s European aspirations. Coming out of a period of international isolation due to the colonels’ regime, Prime Minister Kostas Karamanlis and the new center-right government of New Democracy (ND) at the time were eager to pursue membership in the EEC and restore Greece’s place among the Western democratic nations. To this end, the government ratified in 1975 the International Labour Convention, which recognizes equal pay for work of equal value (Art. 2, parag. 1). ^{Footnote 21} In the early 1980s, the center-left government of the Panhellenic Socialist Movement (PASOK) also signed and ratified the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). ^{Footnote 22}

Under the influence of a vibrant women’s movement that had emerged after 1975, the Socialist government of PASOK that came to power in 1981 incorporated gender equality among its goals and introduced major reforms towards it. Of major importance was the reform of the Family Code (oikogeneiakos kodikas). ^{Footnote 23} The old Family Code contained antiquated provisions that placed women in a subordinate position to that of men, to a degree that was already out of touch with actual social conditions. ^{Footnote 24} The reformed Code replaced the patriarchal family dominated by the father with a family model based on the principle of equality, in which both husband and wife share parental authority. Furthermore, new statutes abolished all prohibitions and discriminatory treatment against women’s employment in the public sector, among others, and transposed the EEC Equal Pay and Equal Treatment Directives of the 1970s. ^{Footnote 25} Together with reformed abortion laws, they formed an impressive array of measures that challenged the legal frame sanctioning inequality.

From the 1990s onwards, gender equality case law developed by the country’s two higher courts, Areios Paghos (on civil and criminal matters, hereafter AP) and especially by the Council of the State (Symvoulio Epikrateias, in administrative matters, hereafter CoS). A diffused system of judicial review enables all Greek courts to engage in constitutional review of fundamental rights. However, the practice of lower courts in following the pronouncements of the high courts, and the fact that individual challenges to executive acts are directly made before the CoS, have resulted in the concentration of judicial review in higher courts, especially in the CoS. ^{Footnote 26} In general, Greek courts after 1974 have taken a deferential approach towards the executive. It has been characterized by strong judicial restraint in reviewing the constitutionality of legislative acts and the tendency to “insulate several areas of State activity from judicial scrutiny and to limit their judgments’ adverse effects on the State.” ^{Footnote 27} In spite of this, the 1974 constitutional provision on sex equality, interpreted in conjunction with EC equality law, formed the basis for slowly advancing gender equality rights through the courts’ jurisprudence.

A central impediment in the judicial advancement of sex equality rights was the constitutional provision that allowed for derogations from the equality principle for justified reasons and as provided for by statute (incorporated as Art. 116, parag. 2). Its interpretation by courts allowed for the perpetuation of old inequalities and the appearance of new ones. In a growing body of case law from the 1980s onwards, Greek higher courts often interpreted the sex equality clause of the constitution (Art. 4 (2)) in the light of permissible derogations from the equality principle (Art. 116 (2)). For instance, the latter was invoked to justify differential (and favorable) treatment for women in the sphere of social policy, such as lower age of retirement and pension. Such derogations became acceptable to courts on grounds of increased protection of women in relation to maternity, marriage, and the family (as if men’s role in relation to these did not need to be similarly protected), as well as on the basis of the biological differences that presumably required differential treatment of men and women. ^{Footnote 28} The same constitutional provision (Art. 116(2)) had also been invoked to legitimate exceptions that circumscribed women’s participation in particular male-dominated sectors of employment. For instance, such exceptions persisted in the form of restrictive quotas limiting the number of women who could be recruited into various military or police corps and academies. Within the broad scope of permissible divergences from equality under the 1974 constitution (Art. 116, para. 2), judges accepted such restrictive measures disadvantaging women.

While the CoS occasionally struck down restrictive quotas for lack of any justification in the relevant statutory provisions (as required by old Art. 116 (2)), it never questioned their legitimacy and constitutionality. In an early set of five similar cases, the CoS deemed unconstitutional (contrary to Art. 4, parag. 2, and Art. 116, parag. 2 of the Greek constitution) a legislative provision ^{Footnote 29} that gave to the Minister of Defence the discretion and power to decide about the number of women who can annually enroll into military schools. ^{Footnote 30} It did so because the statutory provision under dispute did not spell out objective criteria that would justify the differential treatment of women. ^{Footnote 31} Two years later, in reference to this case, the CoS similarly condemned a ministerial order, this time because it restricted the number of men entering the Officer’s Academy for Nurse Training (Scholi Aksiomatikon Nosileftikis, SAN). ^{Footnote 32} The ministerial order had limited to 10 percent the number of men who would be accepted into the Academy, most likely on the assumption that the profession of a nurse requires “intrinsically female” traits, such as that of caring for others. On the whole, though, the CoS accepted restrictive quotas as permissible divergences from gender equality, using gender as a proxy for physical abilities, or for various psychological/moral qualities, and largely without justification in reference to actual circumstances. Greek government policy unconcernedly continued to resort to restrictive quotas overwhelmingly to the disadvantage of women. ^{Footnote 33}

At the same time that the CoS accepted differential treatment of women due to their distinct biological, physical, and presumably psychological traits, it rejected such a treatment when it amounted to preferential measures targeting women. It did so by invoking a formal conception of equality premised on the absence of direct discrimination. In the early 1990s, a statute for the first time instituted a form of affirmative action, requiring that at least one fully qualified woman be present in service councils (dioikitika symvoulia). ^{Footnote 34} The CoS found it to be incompatible with the principle of gender equality (Art. 4, para. 2 of the Greek constitution), ^{Footnote 35} using the lame and unfounded justification that there was no evidence to suggest that the glaring underrepresentation of women in service councils was due to discrimination. ^{Footnote 36}

In 1998, however, the CoS case law took a notable turn in its jurisprudential approach on restrictive quotas, which drew from developments in international and EU law. In an important decision, the Full Chamber of the CoS in reference to the constitutional principle of sex equality (Art. 4 para. 2) and the EC Directive 76/207, for the first time deemed as prima facie unconstitutional the adoption of quotas that limited the number of women (to a maximum of 10 percent) accepted in police academies. ^{Footnote 37} It argued that divergences from sex equality are permissible as long as they are determined on the basis of criteria that allow individuals and courts to review whether they are justified. In this decision, a strong concurring opinion by twelve members of the CoS Plenum underlined that the a priori view that particular physical, psychological, or intellectual capabilities are not shared by women (who must therefore be excluded from or restricted in certain kinds of professions) was against constitutional equality guarantees. ^{Footnote 38} Invoking the principle of proportionality, the court also argued that the differential treatment of women must be both necessary and appropriate to achieve the stated purpose. ^{Footnote 39} It was no longer enough to generally refer to the mission and nature of activities in which corps like the police engage in order to restrict the number of women who are recruited to them. Equally importantly, this CoS decision went a step further to argue that positive measures in favor of one of the sexes may be necessary as a temporary means to correct long-term and persistent discrimination.

At the same time, the constitutionality of positive measures was reviewed for the first time by the CoS in another landmark decision that was issued the same day in 1998 as the above-mentioned decision on restrictive quotas (1917/1998). ^{Footnote 40} It concerned the requirement of including at least one qualified woman in the service councils (the same dispute involved in the case discussed above, see CoS Section judgment 6275/1995), and it was subsequently referred to the CoS Plenary Session because of the importance of the issue. This time, the CoS Plenum departed from the Section judgment to pronounce the constitutionality of such a requirement. ^{Footnote 41} The Court advanced its interpretation in reference to the constitution’s gender equality principle (Art. 4 (1) and (2)) rather than in reference to the permissible divergences from it (Art. 116 (2)). Additionally, invoking the EC directive 76/207, and the UN CEDAW Convention, the CoS reiterated its view that positive measures (in favor of women) may be appropriate and necessary in order to reduce existing disparities (the underrepresentation of women in the higher levels of public administration) until real equality is achieved. ^{Footnote 42} In a phrase that hinted at the ECJ’s decision in Kalanke, the CoS stated that “in practice, discrimination against a category of persons is so intense that the strict application of the equality principle amounts to equality in appearance, while in reality it entrenches and reproduces an existing situation of inequality.” ^{Footnote 43}

The 1998 shift in the CoS jurisprudence that condemned restrictive quotas against women and simultaneously accepted the constitutionality of positive measures was both informed by and in turn advanced a substantive understanding of sex equality, moving away from its earlier attachment to a formal conception of it. According to the law professor and activist Aliki Yiotopoulou-Marangopoulou, the articulation of such a substantive notion rendered extremely problematic derogations from gender equality other than those aimed at redressing existing inequalities, namely positive measures, and deprived restrictive quotas of any kind of justification. ^{Footnote 44} Others, however, argued that the court’s interpretation did not amount to such a substantive reconceptualization. Greek judges and the 2001 constitutional legislators did not intend to abandon a formal conception of equality or to eliminate derogations from sex equality that resonated with gendered social roles and stereotypes. ^{Footnote 45}

Nonetheless, the 1998 shift in the CoS jurisprudence provided the ground for advancing an important amendment of the equality provisions in the frame of a constitutional reform process that was already under way in Greece. The amended constitution of 2001 abolished the embattled Article 116 (2), which had allowed for derogations from the principle of sex equality, and replaced it with another provision stating that “positive measures for promoting equality between men and women do not constitute discrimination on grounds of sex.” It added that “the state shall take measures to eliminate inequalities to the detriment of women that exist in practice” (Art. 116(2)). To be sure, the amended Article 116 (2) did not create a justiciable right; individuals cannot appeal to it in front of courts to demand that state authorities undertake positive measures as a form of remedial action for past or ongoing injustices. ^{Footnote 46} Besides, the CoS jurisprudence remained contradictory and at times regressive, as it is subsequently discussed. ^{Footnote 47}

Still, the shift in the higher courts’ approach and the 2001 constitutional reform of gender equality provisions had important legal and policy consequences. In the first place, they strengthened the legal basis for challenging restrictive quotas against women’s employment and training in certain professions. Secondly, they allowed for the adoption of positive measures legislation to promote women’s participation in service councils and to redress their underrepresentation in politics. In a number of cases, ^{Footnote 48} the CoS confirmed the constitutionality of provisions requiring that at least one third of candidates in local government elections must belong to one sex. ^{Footnote 49} Thirdly, the amended Article 116 of the 2001 constitution also appears to have emboldened Greece’s higher courts to be more proactive for gender equality. They began to scrutinize restrictive quotas in order to identify whether they were based on objective and appropriate criteria that could be reviewed and verified. ^{Footnote 50} The CoS has maintained that by amending Article 116 (2) of the constitution, the Greek lawmaker renounced the discretion that the Equal Treatment Directive (76/207 EC, Art. 2, para. 2) grants to national authorities to make exceptions from the equality principle. ^{Footnote 51} A few years later, the CoS Full Chamber reiterated this opinion ruling out any divergence from the equality principle, except in the form of positive measures that aim to restore a “real equality” between men and women. ^{Footnote 52}

The 1998 shift in the CoS jurisprudence and the 2001 constitutional amendment described above cannot be understood outside of the existing EC/EU legal norms of sex equality, as well as the international and human rights law developments in this area. The general nature of the equality principle in the 1974 constitution was not in and of itself a sufficient basis to ground the gender claims and rights. It was in the light of the EC directives and ECJ case law from the 1970s onwards that national courts were able to render the general principle of sex equality contained in the Greek constitution concrete and directly applicable in contexts such as employment. The influence of the EC/EU law in Greek equality jurisprudence has become much more clearly evidenced and substantial since the 1990s, in part due to increasing awareness of EC/EU law among Greek judges. ^{Footnote 53} The landmark 1998 CoS decisions described above were arguably the “culmination of Greek jurisprudence, by which the gender equality constitutional norms have been interpreted and applied in the light of and in conjunction with Community law and international human rights treaties.” ^{Footnote 54} It is unlikely, however, that the 1998 shift in the CoS jurisprudence and the 2001 constitutional reform would have taken place in the absence of legal and social mobilization, to which we now turn.

3. Greek feminist mobilization and the pursuit of substantive equality

Already in the immediate aftermath of the transition to democracy in 1974, Greek feminists sought to influence the equality-related provisions that were proposed for the new constitution. Accounts of the constitution-drafting process at the time show that the permission for derogations from equality (ex-Art. 116 (2)) was a last-minute insertion. It was a compromise reached in the conflict between feminists who had advocated the inclusion of a sex-specific equality clause, and the members of the constitutional assembly who opposed this. ^{Footnote 55} Legal mobilization, though, whether in the form of litigation or collective attempts aimed at changing the law, did not emerge as significant among Greek feminist strategies, possibly due to restrictive rules of standing for collective actors, and a prevailing culture of judicial conservatism and restraint, among other reasons. Despite accession to the EC in 1981, Greek courts throughout the decade continued to be unfamiliar with EC equality law and unwilling to apply it.

For most part, feminists from the left saw law and equality as compromising the goal of radically transforming traditional relations between men and women and refrained from pursuing legal reforms and claims through courts. Those among them who resolved to give up their ideological and organizational autonomy chose to associate with, and incorporate, their goals within broader party platforms. Political parties, rather than courts, became the main organizational and institutional structures that channeled women’s demands and participation and shaped their strategies throughout the 1980s. By the 1990s, though, the women’s movement as it had developed after 1974 had dissipated and largely drifted away from political parties due to a generalized disappointment with the way in which these had handled women’s issues in the 1980s. An increasing number of activists and women’s organizations began to (re)consider their dismissive attitude towards legal strategies and to pay attention to and seek to leverage the EU legal and policy tools regarding sex equality.

In the 1990s, less than a handful of lawyers who were also feminists and who had been active in various international and European fora began to use the courts strategically to advance equality-related case law. Aliki Yiotopoulou-Marangopoulou and Sophia Koukouli-Spiliotopoulou were the leading figures here. They acted under the aegis of the Hellenic League of Women’s Rights (hereafter HLWR or the League), the oldest feminist association in Greece. Since its creation in the 1920s, the HLWR had an international orientation, being a member of the International Alliance of Women since the early part of the twentieth century and later gaining United Nations consultative status. Yiotopoulou-Marangopoulou, a law professor and the longest-serving (over twenty-five years) HLWR president, has a lifelong record of activism and involvement in gender equality issues, particularly in relation to the UN system. Koukouli-Spiliotopoulou, a professional lawyer, was well-versed and highly active in developments in EC/EU law throughout the 1980s and the 1990s, as an expert of the European Commission, a member of European networks of collaboration coordinated by the European Women’s Lobby (EWL), as well as vice president of the European Women’s Lawyers Association (Stratighaki 2006: 283). ^{Footnote 56}

In the mid-1990s, the promotion of positive measures and substantive equality, both through courts and through lobbying, and systematic contacts with parliamentarians assumed priority. Around that time, the HLWR launched a well-coordinated campaign combining test case litigation with various informational and political activities in seeking support for positive measures. Together with collaborators, Yiotopoulou-Marangopoulou and Koukouli-Spiliotopoulou brought or supported cases before Greek courts, including those that led to the landmark decisions of the CoS in 1998 on restrictive quotas, and followed them through with legal commentary. The initial CoS section judgment in 1998 that pronounced unconstitutional the first positive action law requiring the presence of at least one woman in the service councils prompted strong criticism by Yiotopoulou-Marangopoulou (it was subsequently reversed by the Plenary Court). ^{Footnote 57}

The constitutional reform process that was under way in the second half of the 1990s presented a unique opportunity for the HLWR feminists. In December 1997, the HLWR-led coalition organized a panel where it launched its proposal for a constitutional amendment, along with other activities seeking to raise awareness about positive measures among lawmakers, judges, and the society at large. Yiotopoulou-Marangopoulou invoked Greece’s obligation to comply with the CEDAW provisions (Art. 4(1)) and EC/EU law (Art. 141(4) and Art. 2 and 3(2) of the EC Treaty). Inspired by similar developments in Austria, Portugal, Germany, and elsewhere, the HLWR amassed the support of twenty-two women’s organizations to push for a constitutional amendment that would make positive measures acceptable. ^{Footnote 58} The ability of the HLWR to build this coalition was instrumental in convincing a sufficiently large number of members (fifty-eight MPs across political parties led by Anna Benaki-Psarouda) of the constitutional assembly to endorse its proposal. ^{Footnote 59} Subsequently, the League’s proposed amendment was adopted nearly verbatim by the Parliament’s constitutional reform committee, which explicitly referred to the shift in the CoS case law in 1998. The proposal was voted by an overwhelming parliamentary majority (275 out of 280 votes) to be incorporated in the reformed constitution. ^{Footnote 60}

While the women’s litigation and mobilization campaigns were entirely domestic, the strategic decision to place constitutional and legal reform towards positive measures and substantive equality on the top of the Greek feminist agenda cannot be understood outside of the EU context. As its advocacy and awareness-raising activities peaked in 2000, the HLWR stressed among judges, parliamentarians, and legal practitioners that a “constitutional tradition common to the EU member states had formed” and that a growing number of national constitutions were guaranteeing substantive equality and incorporating positive action provisions. ^{Footnote 61} The feminist campaign towards the 2001 constitutional amendment in Greece unfolded contemporaneously with initiatives and reforms towards substantive equality across different member states in the 1990s and early 2000s, ^{Footnote 62} along with more or less coordinated action targeting EU institutions. Even though positive measures are not required by EU law, they had been incorporated into a Council recommendation ^{Footnote 63} and were high on the national feminist agenda in countries such as Germany and in Scandinavia. The acceptance of positive measures as legitimate by the Amsterdam Treaty (modified Art. 119, now Art. 141) further boosted their appeal and most likely galvanized the domestic HLWR campaign in Greece, too. ^{Footnote 64}

The controversy and struggle for positive measures at the EU level also saw a peak in the period between 1995 and 1998, and Greek feminists were cognizant of and informed by the relevant judicial developments and policy debates in the EU during that period. These saw a spurt around the mid-1990s, when the ECJ provided different interpretations of positive measures in its decisions in Kalanke (1996) and Marschall (1997). Kalanke triggered an outcry from the European Commission, while women’s organizations and representatives from member states took action to challenge the view that it conveyed an absolute rejection of positive measures. ^{Footnote 65} They appealed to international instruments such as the ILO Discrimination Convention (Art. 5) and the CEDAW (Art. 4) that accepted special measures as necessary to promote de facto equality. ^{Footnote 66} In contrast to Kalanke, the Marschall decision accepted that the preferential measures instituted by German legislation to redress the underrepresentation of women were in conformity with the ETD (Art. 2(4)). The response of the Commission and women’s organizations to Marschall was overwhelmingly positive.

The 2001 constitutional reform has had mixed and ambiguous effects on the case law of Greek higher courts. On the one hand, it rendered it more difficult to justify restrictive quotas against women in training for and employment in traditionally male-dominated corps such as the Border Guard against Illegal Immigration ^{Footnote 67} (Synoriofylakes) or the Marine Border Guard. ^{Footnote 68} It also compelled decision makers to provide concrete and explicit justification when adopting provisions for restrictive quotas. While the CoS was still deliberating on a number of related cases, Law 3181/2003 was passed, abolishing the restrictive entrance quota for women in the Border Guard. ^{Footnote 69} Nonetheless, a few years later, a highly divided CoS in plenary session accepted anew the constitutionality of restrictive quotas regarding women’s employment as border guards. ^{Footnote 70} Throughout the post-2001 period, the CoS continued to affirm the legality and constitutionality of quotas restricting women’s employment in the police, confirming the respective statutory provision, ^{Footnote 71} as well as provisions restricting the number of women being hired as prison guards. ^{Footnote 72} The court accepted that it is at the discretion of national authorities to treat women and men unequally if “due to the nature of the activities or the condition under which they are exercised, gender is of decisive importance.” ^{Footnote 73}

The new line that the CoS seemed to draw in its jurisprudence was between restrictive quotas that are justified objectively by the legislator and are proportionate to the aim pursued, and those that are not well-founded. ^{Footnote 74} In some cases, the CoS appears to easily accept justifications that reproduce inequalities by taking gender as a proxy for physical strength and agility. For example, the CoS conceded that apart from the administrative tasks, the remaining activities in which the police engage (e.g., confronting violent acts, restoring order in mass events, guarding and transferring inmates, expelling illegal immigrants) require increased physical strength and speed, which “common sense and experience [tell us] that men possess due to biological differences.” ^{Footnote 75} Additional barriers were erected in 2009 when candidates for entry in military academies were required to pass athletic tests, in which performance targets and height requirements often surpassed the average height and physical aptitudes of women, thereby strongly disadvantaging them. ^{Footnote 76}

The legislative and policy effects of the 2001 constitutional reform have been limited, too. Besides a new statute to ensure women’s participation in service councils, ^{Footnote 77} the government in 2001 adopted a law requiring at least one third of candidates from each sex in the party ballots for local and regional elections. ^{Footnote 78} It did so in reference to Community “soft” law on the balanced participation of men and women in decision making ^{Footnote 79} and the EU’s Framework Strategy on Gender Equality (2001–2005). While lower courts have considered this unconstitutional and a restriction on the right to be elected and on equal citizen participation in political life (Art. 5(1) of the constitution), ^{Footnote 80} the CoS has affirmed its constitutionality. ^{Footnote 81} In a new campaign coordinated by the HLWR, women’s organizations have sought to extend this provision to national elections. While their proposal was for at least one third of candidates of each sex in each ballot, the law that was finally adopted in 2008 provides for at least one third of each party’s candidates across the country, thereby diluting further the possibility for female candidates to be elected. ^{Footnote 82}

4. Concluding discussion

The EU multilevel system of law and governance has enhanced opportunities and resources for lawyers and activists seeking to advance gender equality, a potential already identified by scholars studying the effects of federal structures on feminism. ^{Footnote 83} The proliferation of a community body of equality and anti-discrimination law with gender at its origins and core has provided an overarching and dynamic frame that significantly influences and shapes national feminist struggles. In these struggles, the endorsement of positive measures with the Amsterdam Treaty most likely acted as a catalyst in elevating the legitimacy and appeal of substantive equality. Contrary to what is commonly assumed, the interaction of EU law with the diversity of legal cultures and norms across states has most likely had leveling-up effects, with the more advanced national equality norms creating pressures for reforms in those legal-constitutional orders with the less developed norms. The greater popularity and appeal of substantive equality and positive measures in Europe in comparison with the United States must also be understood in reference to the European tradition of social protectionism. The entrenched idea that the state can take action to favor and support particular segments of the population was far from novel, including in the case of Greece.

The preceding analysis shows that the constitutional reform towards substantive equality in 2001 in Greece, and the 1998 jurisprudential shift that paved the way for it, were a direct consequence of the legal and social mobilization campaign by domestic women’s organizations. It involved higher levels of litigation by individuals, and it was supported by a few lawyers committed to women’s rights. International and EU normative developments in gender equality inspired feminist leaders to launch this campaign. The leading figures among Greek feminists systematically invoked EU and international law in sex equality in front of courts and developed their argumentation on this basis. The decisive role of legal and social mobilization, demonstrated in the Greek case study here, is, however, no big news; it mainly confirms and reinforces a substantial body of scholarship that has already highlighted how civil society alliances are at the forefront of campaigns to adopt quotas for women in politics and to pursue constitutional reforms more broadly. ^{Footnote 84} The activism of feminists and women’s organizations at the EU level has also been sufficiently documented and depicted. ^{Footnote 85} Yet, we still lack sufficient knowledge and understanding of the national dynamics, as well as the bottom up processes of mobilization that provide the groundwork for European developments.

Gender equality legal advancements in the EU member states cannot be understood without attending to and tracing the parallel and largely coordinated feminist actions and initiatives, and the complex flow of interactions and influences both horizontally across countries and vertically between national and EU levels. Transnationally coordinated mobilization of women’s organizations advocating positive measures and targeting EU institutions have had a direct and powerful effect on national feminist demands and strategies. In Greece, the national delegation that was formed in the frame of the European Women’s Lobby (EWL), and which included many of those feminists at the forefront of the HLWR positive measures campaign, actively participated in its decision-making and agenda-setting processes in Brussels. At the same time, the European Commission also provided financial, organizational, and political support to activities launched by various women’s organizations in Greece, such as those within the frame of its European programs for equal opportunities between men and women. ^{Footnote 86}

The transnational and multilevel dynamics of mobilization in the frame of EU governance are a source of “soft” pressure to national courts and governments. The feminist mobilization of the 1990s in Greece, which intensified in the second half of the decade, was decisive in bringing the influence and pressure from EU and international norms to bear upon the national judiciary, constitutional legislators, and decision makers. It is highly unlikely that the 1998 jurisprudential shift and the 2001 constitutional amendment recognizing substantive equality and positive measures would have occurred in the absence of such mobilization. To be sure, even a strong women’s movement does not necessarily become the fountain for diffuse mobilization, let alone bring about successful legal and policy outcomes. ^{Footnote 87} At least two characteristics rendered such mobilization in Greece possible and successful. First, the campaign pursued and coordinated by the HLWR was highly effective because it was well-focused, it strategically combined legal with political action, and it skillfully exploited the opening up of the constitutional reform process to pressure for an amendment. Secondly, the issue of positive measures, but also of electoral quotas, was not controversial among women’s organizations like other issues such as social policy, over which feminists are sharply divided. Therefore, the campaign was able to acquire a broad basis of support among feminists, which was also enhanced by its cross-party character.

On the other hand, though, the Greek case study here demonstrates the limits of legal and constitutional reform for feminism in the absence of ongoing and systematic commitment to transform legal advancements to practical measures and to shifts in the actual gender distribution of power. It shows that such reform is not necessarily a precursor to policy and social change; indeed, it can have meager effects on the latter. In Greece, despite the constitutional change, courts have continued to display a wavering attitude towards persisting gender inequalities and positive measures. Furthermore, in Greece, as elsewhere, ^{Footnote 88} the limited enactment, implementation, and effectiveness of positive measures such as quotas have stemmed from the unwilling or lukewarm approach of policy makers. The lack of clarity and understanding that prevail in regard to positive action, both the concrete measures to pursue it, and also their nature and scope, does not help, either. Formal notions of equality remain strongly entrenched and continue to give rise to challenges to electoral quotas, which are seen as a limitation to the right to be elected and to equal participation in politics because they favor women.