Editor's note: Yuri Yagi is a sports lawyer involved in Sports Federations and Japanese Sports Organizations including the Japan Equestrian Federation (JEF), the International Equestrian Federation (FEI), the Japanese Olympic Committee (JOC), the Japan Sports Council (JSC) and the All-Japan High School Equestrian Federation.

1. Introduction

Japan has held three Olympic Games since the inception of the modern Olympics;Tokyo Summer Olympic Games in 1964, Sapporo Winter Olympic Games in 1972, and Nagano Winter Olympic Games in 1998. Therefore, the Tokyo 2020 Olympic Games (Tokyo 2020) are supposed to be the fourth to be held in Japan, the second for Tokyo. Tokyo 2020 were originally scheduled for 24 July 2020 to 9 August 2020. Interestingly, the word ‘postpone’ or ‘postponement’ does not appear in the Host City Contract (HCC).

However, the International Olympic Committee (IOC), the Tokyo Metropolitan Government (TMG), the Japanese Olympic Committee (JOC), and the Tokyo Organising Committee of the Olympic and Paralympic Games (TOCOG) decided on 24 March 2020 that Tokyo 2020 would be postponed because of the pandemic of COVID-19. Later on, the exact dates were fixed ‘from 23 July 2021 (date of the Opening Ceremony) to 8 August 2021 (date of the Closing Ceremony).

The process of the decision is stipulated in the ‘ADDENDUM N° 4’ signed by IOC, TMG, JOC and TOCOG.

This paper provides an overview of the current situation, along with legal and other issues in Japan that have arisen due to the postponement of Tokyo 2020 due to COVID-19. The overview is offered from the perspective of a citizen of the host city and includes a consideration of national polls, the torch relay, vaccination, training camps, ever increasing costs, and the related provisions in the Candidature File and the Host City Contract.

2.    The Situation of COVID-19 in Japan

According to the Government, the first COVID-19 case in Japan was confirmed on 16 January 2020. On 24 March 2020, when the postponement of Tokyo 2020 was decided, the reported number of new COVID-19 positive cases in Japan was 64 (Japanese population is around 126 million). As a comparison, reported cases in Japan on 28 May 2021 was 3,706.

3.    National State of Emergency

Since the start of the pandemic, National states of emergency have been issued three times in Tokyo, the first time was from 7 April 2020 (the reported number of positive cases on that day in Tokyo was 87) to 25 May 2020 (8 cases), the second time was from 8 January 2021 (2,459 cases) to 21 March 2021 (256 cases), and the third began on 25 April 2021 (635 cases) and is still in effect (539 cases as of 29 May 2021). A national state of emergency is not similar to the lockdowns issued in several other countries. It is basically the government’s request that people stay at home. Under National states of emergency, the Government asked businesses, especially restaurants and bars, to close earlier than usual or completely.

4.    National Poll as to Olympic Games

According to a national poll carried out by Japan Broadcasting Corporation (NHK, which is Japan's only public media organization) and published on 10 March 2020, 14 days prior to the decision of the postponement, 40% of respondents answered that they believe the Olympics will be held as scheduled. Conversely, 45% answered that they do not.

The telephone survey of 1,300 Japanese residents carried out by NHK and published on 23 July 2020 showed that 35% said that Tokyo 2020 should be postponed further, 31% said that they should be cancelled, and 26% said that they should be held as scheduled.

In the national poll published by NHK in May 2021, 49% answered Tokyo 2020 should be cancelled, 23% answered they should be held without spectators, 2% answered they should be held as usual.

In addition, people who demanded the cancellation of Tokyo 2020 collected more than 350,000 signatures in an online petition.

5.    Torch Relay

The Olympic Flame was lit in Greece on 12 March 2020 and arrived in Japan on 20 March 2020, just prior to the decision to postpone. However, most related ceremonies were cancelled or downsized and there was less excitement among Japanese citizens than originally expected.

The postponed torch relay started on 26 March 2021 in Fukushima Prefecture, which was severely damaged by a tsunami following The Great East Japan Earthquake in 2011. The torch relay is still ongoing and is live streaming every day on the internet. However in many places, the torch relay has been replaced with stage events instead of running on public roads. Japanese citizens have been asked to not attend the torch relay or the events. As a result, the torch relay has turned out to be totally different from what was expected.

6.    Slow Rollout of Vaccine

COVID-19 vaccination started in Japan on 17 February 2021, first for frontline workers, and at the time of this article (31 May 2021), they are mainly being administered for elderly people over 65 years old. It is a relatively late start and a slow rollout compared to other developed countries (for example vaccination started in December 2020 in the US, the UK, Itally,  France, Germaney, and other countries). As of 30 May 2021, only 0.25% of residents in Japan have been fully vaccinated (twice) and 3.67% have be vaccinated once.

Japanese Prime Minister Yoshihide Suga announced that IOC had struck a deal with Pfizer to provide vaccines for all Tokyo 2020 participants. Accordingly, JOC announced that about 1,600 athletes and other members of Japan's potential delegation to Tokyo 2020 will be vaccinated from 1 June 2021.

7.    Pre-Event Training Camps and Games-Related Events

COVID-19 has also had an effect on Games-related plans such as pre-event training camps and cultural programs planned by local governments. As of 18 May 2021, training camps and Games-related cultural exchange events have reportedly been cancelled in many local governments (reported number was 54) because of the infection risks and the delays of the qualification process.

However it is also reported that the Australian softball team plans to come to Japan for a training camp on 1 June 2021. If this plan is realized, they will be the first team to arrive.

8.    Increasing Cost and Decreasing Revenue

Because of the increasing cost incurred as a result of the postponement, the IOC offered an additional support of reportedly 650 million USD. To reduce costs and support COVID-19 infection prevention measures, TMG and IOC agreed to simplify Tokyo 2020. It has already been decided that spectators from other countries will not be allowed to attend the games. As for domestic spectators, a final decision is expected to be made by the end of June 2021. At any rate, the revenue from the ticket sales will be significantly less than originally estimated.

The postponement of Tokyo 2020 has also resulted in additional costs related to the extension of the employment contracts of the TOCOG staff members, lease contracts of the TOCOG office, and no doubt, countless other contracts. As to domestic sponsorship contracts for Tokyo 2020, they were originally for terms ending December 2020. However, due to  the postponement of the Games, all 68 domestic companies agreed to extend the contract until the end of 2021, despite also facing an unprecedented stagnant business situation.

As to the case of deficit or budget shortfall, the Candidature File and Host City Contract (HCC) provides who will bear the loss.

9.    Candidature File and Host City Contract (HCC)

IOC elected Tokyo as the host city of the 2020 Summer Olympic Games in the 125th IOC Session took place in Buenos Aires, Argentina, from 7 to 10 September 2013. In the bidding process, Candidate Tokyo submitted a Candidature File to the IOC.

Case of Deficit or Budget Shortfall

As to the case of deficit or budget shortfall, the Candidature File and HCC provide that, if TOCOG incurs a deficit, TMG will guarantee to cover any potential economic shortfall of TOCOG, then if TMG should be unable to compensate in full, the Japanese government will ultimately provide the financial support.

Candidature File (*underline added by author for emphasis)

6.1 An OCOG budget fully guaranteed

6.1.1 TOCOG Budget guarantee

Tokyo 2020 is very confident the TOCOG budget will be balanced. Nevertheless, should TOCOG incur a deficit, the Tokyo Metropolitan Government (TMG) has guaranteed to cover any potential economic shortfall of TOCOG, including refunds to the IOC in advance of payment or for other contributions made by the IOC to TOCOG.

In addition, should TMG be unable to compensate in full, the Government of Japan will ultimately compensate for it in accordance with the relevant laws and regulations of Japan.

6.1.2 Compensation mechanism in the event of a budget shortfall

(…) if necessary, TOCOG will activate the compensation mechanism.

Under the compensation mechanism, TOCOG will consult with TMG and the Government of Japan to ensure that the Tokyo 2020 Olympic and Paralympic Games can take place as planned. Financial support will be primarily provided by TMG. In addition, should TMG be unable to compensate in full, the Government of Japan will ultimately provide the financial support in accordance with the relevant laws and regulations of Japan.

The compensation mechanism will function in a similar fashion in the event of full or partial cancellation of the Tokyo 2020 Olympic and Paralympic Games.

The Candidature File is referred to in the HCC, which was signed by the IOC, TMG and JOC on 7 September 2013. It provides that, the TMG and TOCOG shall be jointly and severally responsible for financial undertakings and the Japanese government shall support them.

Host City Contract (*underline added by author for emphasis)

4. Joint and Several Obligations of the City, the NOC and the OCOG

 (…) the City, the NOC (other than with respect to the aforementioned financial undertakings of the City and the OCOG) and the OCOG shall be jointly and severally responsible in respect of all damages, costs and liabilities of any nature, direct and indirect, which may result from a breach of any provision of this Contract. The IOC may in its sole discretion take legal action against the City, the NOC and/or the OCOG, as the IOC deems fit.

The foregoing shall be without prejudice to the liability of any other party, including without limitation, any Government, national, regional or local authorities that provided financial guarantees during the City's application or candidature to host the Games or otherwise.

 

7. Guarantees, Representations, Statements and Other Commitments

All guarantees, representations, statements, covenants and other commitments contained in the City's application or candidature file  (…) shall survive and be binding upon the City, the NOC and the OCOG, jointly and severally, (…).

On top of that, the HCC provides that the TMG, JOC and TOCOG must always protect IOC from all payments and other obligations in respect to any damages, claims, actions, losses, costs, and/or expenses. On the other hand, the TMG, JOC and TOCOG promised to waive any claims against the IOC in the HCC.

9. Indemnification and Waiver of Claims Against the IOC

a) Indemnity by the City, the NOC and the OCOG. The City, the NOC and the OCOG shall at all times indemnify, defend and hold harmless and exempt the IOC, IOC Television and Marketing Services SA, the OBO, as further detailed in Section 54 (a) below, and their respective officers, members, directors, employees, consultants, agents, attorneys, contractors (e.g. Olympic sponsors, suppliers, licensees (of the IOC, the National Olympic Committees and the Organising Committees of the Olympic Games) and broadcasters) and other representatives (each, an "IOC Indemnitee" and collectively, "IOC Indemnitees"), from all payments and other obligations in respect of any damages, claims, actions, losses, costs, expenses (including outside counsel fees and expenses) and/or liabilities of any nature (including injury to persons or property), direct or indirect, suffered by the IOC (or any IOC Indemnitee), including all costs, loss of revenue, and also damages that the IOC (or any IOC Indemnitee) may have to pay to third parties (including but not limited to Olympic sponsors, suppliers, licensees and broadcasters) (collectively, "Claims") resulting from:

i) all acts or omissions of the City, the NOC and/or the OCOG (…), relating to the Games (including in connection with the planning, organising, financing and staging thereof) and/or this Contract;

iii) any claim by a third party arising from, or in connection with, a breach by the City, the NOC or the OCOG of any provision of this Contract.

 

c) Waiver of Claims against the IOC. Furthermore, the City, the NOC and the OCOG hereby waive any Claims against the IOC and the other IOC Indemnitees, including for all costs resulting from all acts or omissions of the IOC relating to the Games, as well as in the event of any performance, non-performance, violation or termination of this Contract. This indemnification and waiver shall not apply to wilful misconduct or gross negligence by the IOC.

As to the cancellation of Tokyo 2020, only the IOC has the right to make such decision on  ‘reasonable grounds’. In the  case of cancellation by the IOC for any reason, the TMG, JOC and TOCOG will be considered as waiving any claim or right of indemnity, and promising to indemnify and hold IOC Indemnities harmless from any third party claims.

XI. Termination

66.　Termination of Contract

a) The IOC shall be entitled to terminate this Contract and to withdraw the Games from the City if:

i)  the Host Country is at any time, whether before the Opening Ceremony or during the Games, in a state of war, civil disorder, boycott, embargo decreed by the international community or in a situation officially recognised as one of belligerence or if the IOC has reasonable grounds to believe, in its sole discretion, that the safety of participants in the Games would be seriously threatened or jeopardised for any reason whatsoever;

(…)

iii) the Games are not celebrated during the year 2020;

iv) there is a violation by the City, the NOC or the OCOG of any material obligation pursuant to this Contract, the Olympic Charter or under any applicable law; or if

(…)

In case of withdrawal of the Games by the IOC, or termination of this Contract by the IOC for any reason whatsoever, the City, the NOC and the OCOG hereby waive any claim and right to any form of indemnity, damages or other compensation or remedy of any kind and hereby undertake to indemnify and hold harmless IOC Indemnitees from any third party claims, actions or judgements in respect of such withdrawal or termination(…).

Dispute Resolution

According to Article 87 of HCC, in the case of dispute among parties, the applicable law is Swiss law, and the dispute is to  be decided by Court of Arbitration for Sport (CAS).

87. Governing Law and Resolution of Disputes; Waiver of Immunity

This Contract is governed by Swiss law. Any dispute concerning its validity, interpretation or performance shall be determined conclusively by arbitration, to the exclusion of the ordinary courts of Switzerland or of the Host Country, and be decided by the Court of Arbitration for Sport in accordance with the Code of Sports-Related Arbitration of the said Court. (…)  

10.  Conclusion

No one expected COVID-19 nor the impact that it would have on the Olympic Games at the time of the bidding process and of the signing of the HCC. As a result, the HCC and Candidature File provisions related to the losses caused by the postponement were not well understood among the Japanese people. Now people are starting to recognize the possibility that the TMG or/and Japanese government will likely incur huge losses as a result of the postponement or, in the worst-case, cancellation of Tokyo 2020.

Many Tokyo citizens and Japanese citizens were looking forward to Tokyo 2020 before COVID-19. However, judging from the national polls, now this excitement seems to turn into anxiety and concern.

While the whole world continues to prepare for the postponed Tokyo 2020,  the situation is still uncertain. In fact, the current number of COVID-19 cases in Japan is much larger than at the time when the postponement was decided in March 2020. It is very hard for involved individuals to maintain their motivation in light of this uncertainty. On the other hand, the vaccination push is expected to be a game-changer. Not only the TOCOG, TMG and JOC, but also multimedia outlets, sporting federations, sponsors, travel agencies, and the general public are preparing, believing Tokyo 2020 will be held. It’s natural and understandable that host city citizens have various opinions. However, athletes have been training for the chance to qualify and compete at the Olympic Games their whole life. Therefore, it is hoped the situation will improve and the Tokyo 2021 Olympic Games will be held safely and securely even if they are totally different from what we expected originally.

The International Association of Athletics Federations (IAAF), the monitoring body of track and field athletics, regularly submitted South African middle distance runner and Olympic gold medalist Mokgadi Caster Semenya to sex verification tests when it began questioning her sexual characteristics and speculating whether her body belonged on the Disorder of Sex Development (DSD) spectrum. DSD Syndrome is often defined as an “intersex condition” which affects the clear development of either/or genitalia, gonads and chromosomes into one distinctive sex or another. The spectrum of the intersex condition is particularly wide, and the disorder can sometimes be minimal - some cases of female infertility can actually be explained by an intersex condition.

The IAAF deemed the controversial sex verification tests necessary on the grounds that it was required to prove Semenya did not have a “medical condition” which could give her an “unfair advantage”. It was eventually found that, because of an intersex trait, Semenya did have abnormally high levels of testosterone for a woman, which, in the IAAF’s opinion, justified a need for regulatory hormonal adjustments in order for her to keep competing in the women’s category. The IAAF also funded research to determine how ‘hyperandrogenism’ affects athletic performance. In 2018, it issued Eligibility Regulations on Female Classification (“Athlete with Differences of Sexual Development”) for events from 400m to the mile, including 400m, hurdles races, 800m and 1’500m. The IAAF rules indicated that in case of an existing high level of testosterone, suppression or regulation by chemotherapy, hormonal castration, and/or iatrogenic irradiation was mandatory in order to take part in these events.

Semenya and her lawyers challenged the IAAF Regulations in front of the CAS, who, in a very controversial decision, deemed the Regulations a necessary, reasonable and proportionate mean “of achieving the aim of what is described as the integrity of female athletics and for the upholding of the ‘protected class’ of female athletes in certain events” (§626).

The CAS Ruling

Semenya and her attorneys claimed that forcing her to get unwanted medication represented a violation of human rights. On the 1^st May 2019, the Swiss-based Court of Arbitration of Sport (CAS) ruled in favor of the restrictions placed on female athletes with high levels of testosterone by the IAAF. The direct consequence of this decision for Semenya was the obligation for her to take testosterone suppressants in order to continue competing in her category of IAAF events.

In March 2019, the United Nations Human Rights Council issued a resolution indicating the IAAF Regulations were “not compatible with international human rights norms and standards, including the rights of women with differences of sex development” and that there was “no clear relationship of proportionality between the aim of the regulations and the proposed measures and their impact.”

Because the Regulations established conditions and restrictions which were targeted at the female (or intersex) athlete population exclusively and did not impose any equivalent conditions or restrictions on male athletes, the CAS Panel considered that the Regulations were, prima facie discriminatory on grounds of legal sex. After reminding that “it is common ground that a rule that imposes differential treatment on the basis of a particular protected characteristic is valid and lawful if it is a necessary, reasonable and a proportionate means of attaining a legitimate objective” (§548), the Panel considered that its sole responsibility was to determine whether the DSD Regulations were necessary, reasonable and proportionate. As such, the Panel said it was “not required to (…) appraise the adequacy of the IAAF’s policy-making process”.

The Swiss Federal Tribunal and ordre public

A decision from the CAS can only be challenged at the Swiss Federal Tribunal (SFT) on a limited number of grounds, enclosed in art. 190 al. 2 of the Federal Act on Private International Law (PILA), which include claiming that the principle of equal treatment of the parties or their right to be heard in an adversarial procedure has not been observed (lit. d) and that the award is incompatible with public policy (lit. e). At the beginning of June 2019, after an ex parte request, the SFT, Switzerland’s highest court, granted Semenya a temporary suspension of the IAAF rules on testosterone limits. She was able to compete over distances of 400 to 1’500m without medication, until the SFT issued a ruling.

Because it was considered that the discrimination was necessary, reasonable and proportionate in comparison with the vast majority of non-DSD women, the only outcome for Semenya’s lawyers was to argue on the violation of the principle of public order. The 30^th July 2019, the SFT reversed the ruling that temporarily lifted the application of the IAAF’s regulations, thus impeding her to defend her 800m title at the World Championships in Doha in September 2019. The SFT concluded that “neither the allegation of an infringement of the principle of non-discrimination, nor the alleged violation of ordre public due to an infringement of their personality and human dignity appeared with high probability to be well founded”. Welcoming the decision, the IAAF stated that, in certain particular cases, “biology trumps identity”.

The elements of comparison

Body Policing

Admitting that “the imperfect alignment between nature, law and identity is what gives rise to the conundrum at the heart of this case” (§559), the CAS stated that:

“On true analysis, (…) the purpose of the male-female divide in competitive athletics is not to protect athletes with a female legal sex from having to compete against athletes with a male legal sex. Nor is it to protect athletes with a female gender identity from having to compete against athletes with a male gender identity. Rather, it is to protect individuals whose bodies have developed in a certain way following puberty from having to compete against individuals who, by virtue of their bodies having developed in a different way following puberty, possess certain physical traits that create such a significant performance advantage that fair competition between the two groups is not possible.”

The public opinion could not help but point the finger at the underlying hypocrisy of the decision, in comparison with similar cases, both inside and outside of the sports world. Firstly, the same type of policy and legal arguments are often held for controlling certain types of bodies exclusively, whilst leaving others out of the line of sight. In the sports world, it is certainly the case: think of the impressive decoration of Olympian swimmer Michael Phelps aligned with the god-like praises he received for his physical strength and capacity; for instance. On the contrary, leaving “abnormally” tall basket-ball players on the bench so as to give naturally shorter players a chance to win, or testing male athletes with poor athletic results in suspicion they might have low levels of testosterone seems absurd. In fact, the latter are only tested as to make sure they do not take anything effectively modifying their capacities in competing. Semenya and her lawyers did point to the fact that “it is illogical and unnecessary to regulate one genetic trait while celebrating all the others” (CAS decision, §53).

Out of the sports world, indications of “naturalness” in pro-life arguments or governments’ refusal to medically cover the suppression of hormones in transgender reassignment cases are also examples of body policing. The case therefore raises the central question of how stereotypes, especially gender ones, give a social meaning to a fact and how legal regulation can confirm it, thus perpetuating it.

The social  meaning of women and gender

Taking a step away from Semenya’s cause célèbre, it must be stressed that, for long, women were not accepted to compete in the Olympics and that their progressive integration was only made possible when a redefinition of the norms of femininity and masculinity, as they relate to sports and competition, occurred. This means that medical tests were carried out and, as a backlash to noticing the instability and fluidity of sex categories, those very categories were reinforced and redefined according to stereotypes. In other words, the sports world went very far to ensure there was a biological difference so that the natural and social order as it was could not be disrupted.

If we try to move away from the (in my opinion, sterile) debate on biological differences (remembering that the latter has also been explained by anthropologists as being a consequence of our gendered social order[1]), we should ask ourselves who has the power to define the norms of femininity and masculinity. “Woman” and “man” have very particular social meanings. Furthermore, commentators often qualify the sex verification tests as being racially flawed. In this sense, the discussion is also of epistemological importance: the bonus corpus is never the female body, and is always the white male one, with “naturally” good athletic abilities. True, scientific results are usually dependent on a certain political order[2], as are any other empirical social-situated findings. The CAS Panel said that an assessment of the likely impact of the DSD Regulations on wider society would require “an analysis of multifaceted sociological issues which are not amenable to judicial resolution by an arbitral tribunal (…)” (§518). And, as such, it is certainly not for an arbitration court to have the power to (re)define gender categories, which are intrinsically political and historical, and are not limited to the sports world.

Appealing to the ECtHR

If she does not prevail before the SFT, Semenya could still appeal to the European Court of Human Rights, alleging a breach of Article 14 and/or Article 8[3]. It may give the Strasbourg Court an interesting opportunity to comment on gender opposition and binarity, as well as on the social limitations put on gendered bodies. The gender stereotypes discussion is not a new one; regional and international courts have had the opportunity, on many occasions, to comment on the need to combat harmful gender stereotypes[4]. However, they usually do so in relation to human rights law and to the principles of equality and non-discrimination. Even if, of course, not every unjustified discrimination is rooted in stereotypes[5], they seldom point at the wrong of gender stereotypes per se. Hopefully this may lead the ECtHR to further reflect on the harmfulness of gender stereotypes, beyond the well-established categories in need of protection against unjustified discrimination.

The CAS practically said that it was bound by biology. If anything, the results of the sex verification tests should have proven that Semenya’s body has incredible athletic abilities, with no requirements of medically modifying it whatsoever.

Conclusion

In a letter to the IAAF about their regulations, United Nations experts on health, torture, and women’s rights wrote:

“The assessment for ‘exclusion or treatment’ based on the IAAF regulations relies on suspicion and speculation, based on stereotypes about femininity. This effectively legitimizes widespread surveillance of all women athletes by requesting national federations as well as doctors, doping officials, and other official personnel to scrutinize women athletes’ perceived femininity, which can include appearance, gender expression, and sexuality. Women who are understood to be “suspicious” about their natural physical traits are tied to subjective and cultural expectations regarding which bodies and modes of gender expression are “appropriate,” or even valorised by adherence to traditional or normative aesthetics of femininity. Gender and sex-based stereotyping and stigma have a long history, not only of causing psychological harm to women and gender minorities, but also of increasing the possibility of violence against them.”

The social norms of gender act as a blur on reality, based on the stereotype that “a real woman” should not be that good of an athlete. It provides us with an overview of how public policy decisions are justified by scientific findings, operating in a gender-normative environment. The discrimination was considered “necessary, reasonable and proportionate” in comparison with the vast majority of non-DSD women, but it somehow appears to be a debate on the equality between women and men and on reaffirming the importance of the “fixed duality of sexual difference”[6]. The CAS Panel said that it was “faced with conflicting rights concerning the rights of female athletes who do, and do not, have DSD” (§554).

Interestingly enough, the more women are compared to each other, on the grounds of fairness, the stronger the female gender category is reinforced.

[1] Priscilla Touraille, Hommes grands, femmes petites : une évolution coûteuse. Les régimes de genre comme force sélective de l’évolution biologique, Éditions de la Maison des Sciences de l’Homme: Paris 2008.

[2] Thomas Laqueur, La Fabrique du Sexe: Essai sur le corps et le genre en Occident, Gallimard: Paris 1992.

[3] The ECtHR had considered an application brought following an unsuccessful appeal to the Swiss Federal Tribunal in the October 2018 decision ECtHR, Mutu and Pechstein v Switzerland, applications no. 40575/10 and no. 67474/10, ECLI:CE:ECHR:2018:1002JUD004057510, alleging breaches of Article 6 of the European Convention on Human Rights.

[4] The Office of the High Commissioner for Human Rights has broadly defined the notion of “harmful gender stereotypes”, as sexist beliefs, which include representing women in roles considered traditional; as mothers and household heads, as subordinates of men or as sexual objects. In 2013, the OHCHR prepared a report on sex and gender stereotypes, which outlines the practice of treaty bodies and their reference to gender stereotypes. The obligations of States with regard to stereotypes are those set out in Article 5 lit. a CEDAW, reinforced by Article 2 lit. f. which provides that States must “take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women”. At European level, judgments of the ECtHR have concerned stereotypes related in particular to sexuality (Kalucza v. Hungary), reproduction (A. B. C. v. Ireland; R. R. v. Poland) or domestic violence (Valiuliené v. Lithuania; Opuz v. Turkey). See also Konstantin Markin v. Russia; Carvalho Pinto de Sousa Morais v. Portugal; Khamtokhu and Aksenchick v. Russia.

[5] Sophia Moreau, ‘Equality Rights and Stereotypes’ in Dyzenhaus, D./ Thorburn, M. (eds.), Philosophical Foundations of Constitutional Law, Oxford University Press : Oxford 2019.

[6] Hilary Charlesworth, ‘Foreword’, in Harris Rimmer S./Ogg K., Feminist Engagement with International Law, Edward Elgar: Cheltenham 2019.