Connecting Gender Identity and Freedom of Conscience in Recent Romanian Constitutional Case-Law

Mihail Stănescu-Sas

doi:10.46282/blr.2021.5.2.236

Authors

Mihail Stănescu-Sas University of Bucharest https://orcid.org/0000-0003-0037-4750

DOI:

https://doi.org/10.46282/blr.2021.5.2.236

Keywords:

freedom of conscience, gender identity, freedom of expression, equality before the law, Constitution of Romania, Romanian law

Abstract

The Constitutional Court of Romania has recently ruled unconstitutional a new provision amending the Law regarding national education, meant to prohibit “any activity of disseminating the theory or opinion of gender identity, understood as the theory or opinion that gender is a concept different from biologic sex and that the two are not always the same”. This provision was found in breach of several constitutional principles, including freedom of conscience and freedom of expression. This decision makes for a brief ingression into the legal nature of gender identity and that of freedom of conscience, allowing for the former to serve as a means to clarifying the scope of application of the latter. Since gender identity recognition is not a “world view”, but a reflection of diversity which is integral to a plural, democratic society, the only way the said provision breached freedom of conscience involved its interior dimension: the freedom of thought of pupils and students. But it did not even involve an interference with the right to manifest a “conviction”, as far as pupils, students and also teachers are concerned. Nonetheless, it breached their freedom of expression.

Author Biography

Mihail Stănescu-Sas, University of Bucharest

Mihail Stănescu-Sas
PhD Student
University of Bucharest, Faculty of Law
Kogălniceanu nr. 36-46, București 050107, Romania;
as well as judge at Constanţa Court of Appeal,
Strada Traian nr. 35C, Constanţa 900743, Romania

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