Jean Monnet Center at NYU School of Law


I. From Equal Treatment to Positive Action and Gender Mainstreaming

In her landmark study of gender in EU education, training and labor market policies, Teresa Rees (1998) makes a useful distinction among three ideal-typical approaches to gender issues: equal treatment, positive action, and mainstreaming. Equal treatment, in Rees' words, "implies that no individual should have fewer human rights or opportunities than any other," and its application in the EC context has taken the form of the adoption of Article 119 on equal pay for men and women, and the subsequent adoption of a series of Directives on equal pay and equal treatment in the workplace; and it is these Directives which have been activated by women litigants in the member states, and enforced by the European Court of Justice in the many equal-pay and equal-treatment cases since Defrenne (Rees 1998: 29). Such an equal treatment approach is an essential element in any equal opportunities policy, Rees argues, but the approach is nevertheless flawed in focusing exclusively on the formal rights of women as workers, and therefore fails to address the fundamental causes of sexual inequality in the informal "gender contracts" among women and men" (1998: 32).

In contrast to the equal treatment approach, Rees posits a second approach, called positive action, in which "the emphasis shifts from equality of access to creating conditions more likely to result in equality of outcome" (1998:34). More concretely, positive action involves the adoption of specific actions on behalf of women, in order to overcome their unequal starting positions in a patriarchal society. At the extreme, positive action may also take the form of positive discrimination, which seeks to increase the participation of women (or other under-represented groups) through the use of affirmative-action preferences or quotas (1998: 37). Since the 1980s, Rees detects a gradual move in the European Union away from a narrow equal-treatment perspective, and toward the adoption of specific, positive-action measures on behalf of women. During the 1990s, this gradual acceptance of positive action has continued and indeed accelerated, as a result of three major policy initiatives. First, as Sonia Mazey (1995) has demonstrated, the European Commission has in recent years adopted a series of Action Programmes, which have fostered pilot projects and the exchange of best practices in areas such as child care and the political representation of women, as well as the creation of networks of experts and advocates in women's rights issues. Secondly, the EU has recently witnessed a lively debate over positive discrimination, stimulated by the European Court's decisions in the Kalanke and Marschall cases, and culminating in the reaffirmation of the member states' right to adopt positive discrimination schemes under EU law (Ellis 1998). Third and finally, the adoption of the Maastricht Treaty, with its pillar devoted to Justice and Home Affairs issues, has created the political space for a new and vigorous EU policy on violence against women, an area previously off-limits to the economically oriented European Community. Taken together, these initiatives, although admittedly tentative, have allowed the EU to undertake concrete action in areas that fall well outside the narrow equal-treatment approach.

In terms of Rees' classification of approaches to equal opportunities, the third and most promising approach is gender mainstreaming. By contrast with the positive action approach, which generally involves the creation of a specific organizational unit (such as the Equal Opportunities Unit in the Commission) and specific programmes for women (such as the four Action Programmes and their pilot projects), the concept of gender mainstreaming calls for the systematic incorporation of gender issues throughout all governmental institutions and policies. As defined by the Commission, which adopted a formal commitment to gender mainstreaming in 1996, the term "involves not restricting efforts to promote equality to the implementation of specific measures to help women, but mobilising all generally policies and measures specifically for the purpose of achieving equality by actively and openly taking into account at the planning stage their possible effects on the respective situations of men and women (gender perspective)" (Commission of the European Communities 1996: 2, emphasis in original).

In other words, gender is integrated into the formulation and implementation of all EU policies, from employment to transport, which then become instruments in the Union's general effort to promote gender equality. So defined, gender mainstreaming is a potentially revolutionary concept, which promises to bring a gender dimension into all EU policies, and hence to all women and men affected by those policies. On the other hand, gender mainstreaming is also an extraordinarily demanding concept, which requires the adoption of a gender perspective by all the central actors in the policy process-including Commission Directorates-General, as well as sectoral Councils of Ministers, and member government officials who may have little experience or interest in gender issues. This raises two central questions for any student of gender mainstreaming in the EU: Why and how did the EU adopt a policy of gender mainstreaming in the first place, and how has it been implemented in practice?

The answer to both of these questions, we argue, can be found in the recent literature on social movements, which emphasizes a combination of political opportunities, resource mobilization, and strategic framing in order to explain the rise of social movements and their impact on policy (cf. McAdam, Macarthy and Zald, eds., 1996; McAdam, Tarrow and Tilly, 1998; and Tarrow 1998). In terms of political opportunities, Pollack (1998) has argued that, despite the difficulties of decisionmaking in the Council and of implementation in the member states, the European Union nevertheless presents a favorable opportunity structure for diffuse interests such as women's groups. In particular, the EU provides multiple points of access to the policy process, and multiple allies among the European policymaking elite, including: sympathetic member governments in the Council; the Equal Opportunities Unit within the European Commission, which is charged with preparing legislation and action programmes on sex equality issues; the Women's Rights Committee of the European Parliament, which has acted as a steadfast and often radical advocate on women's issues; and the European Court of Justice. Furthermore, we argue below that the political opportunity structure of the European Union became systematically more favorable in the 1990s, as a result of the adoption of the Maastricht Treaty on European Union in 1993, and the subsequent accession in 1995 of three new member states with a long-standing commitment to sexual equality. These changes in the political opportunity structure, we argue, explain much of the recent broadening of the EU women's rights agenda.

Political opportunities, however, are not sufficient to ensure the emergence of a social movement and the achievement of its substantive goals. The ability of social movements to organize and to influence policy, rather, is dependent in part upon mobilizing structures, defined as "those collective vehicles, informal as well as formal, through which people mobilize and engage in collective action" (McAdam, McCarthy and Zald 1996: 3). In the case of the European Union, we argue that specific supranational actors-including most notably the Equal Opportunities Unit of the Commission and the Women's Rights Committee of the European Parliament-form the heart of a transnational network of experts and activists in the area of equal opportunities, and that these networks have succeeded in placing on the agenda a wide range of issues previously beyond the scope of EU policymaking.

Finally, in addition to political opportunities and mobilizing structures, social movement theorists have focused increasingly on the importance of framing processes, understood as "the conscious strategic efforts by groups of people to fashion shared understandings of the world and of themselves that legitimate and motivate collective action" (McAdam, McCarthy and Zald 1996: 6). The concept of strategic framing was first applied to the study of social movements by Snow and his colleagues, who argued that social movement organizations may strategically frame issues in order to resonate or "fit" with the existing dominant frames held by various actors, who are more likely to adopt new frames that are resonant, rather than in conflict, with their existing "dominant" frames (Snow et Benford. 1992: 137). In a similar vein, Rein and Schon have applied the concept of framing to the study of public policy, arguing that policymakers are guided in their work by what the authors call a "policy frame," defined as "a way of selecting, organizing, interpreting and making sense of a complex reality to provide guideposts for knowing, analyzing, persuading, and acting" (1993: 146).

In the EU case, we argue, following Sonia Mazey (1998), that gender mainstreaming has emerged during the 1990s as the dominant policy frame for equal opportunities policy in the European Union. The acceptance and implementation of gender mainstreaming, however, depends in practice on the resonance or "fit" between the proposed policy frame and the dominant frame(s) of the EU institutions, most notably the Commission and its various Directorates-General. In this regard, Anne Sisson Runyan has examined the international political activities of women's NGOs, arguing that these groups are condemned to operate within a dominant neoliberal frame emphasizing individual rights, capitalism, and the rule of law (Runyan 1999: 212). While we agree with Runyan about the importance of the neoliberal frame, we resist positing neoliberalism as the single, all-embracing "master frame" of the international community. Rather, we suggest that both individuals and organizations can be placed along a continuum in terms of their support for either a neoliberal frame, with its emphasis on individuals and free markets, or a more interventionist frame, which accepts the intervention of states and international organizations in the marketplace in pursuit of social goals, including the goal of sexual equality. Indeed, we shall argue below that the Directorates-General of the European Commission vary considerably in their placement along this continuum from neoliberalism to interventionism, and this variation in turn explains much of the variance in the response of various DG's to the Commission's gender-mainstreaming mandate of the late 1990s.



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