Using strategic litigation for women’s rights: Political restrictions in Poland and achievements of the women’s movement

Abstract

Legal mobilization in the courts and in political discourse has emerged as an increasingly important strategy of social movements that complements other political approaches. This is true also for women’s movements in post-socialist countries, but most research on strategic litigation has focused so far on common law countries and on supranational litigation in Europe. Using the case of Poland as an example, this article asks why references to the law are so attractive in post-socialist contexts and what can be gained by this with respect to actual rights, justice and social change. It focuses thereby on strategic litigation as the most sophisticated strategy that results from other sustained movement activities connected with the law. It draws on field research, interviews with activists and analyses of primary as well as secondary sources. The article explores the reasons for using the law as the ‘master frame’ by analysing the traditions of gender and law in state socialism and during democratic consolidation. Two examples of strategic litigation, the Tysiąc case for reproductive rights and the ‘Biedronka’ cases for employment rights, are analysed and situated in the context of other legal mobilization activities. These cases set the agenda for crucial social problems and resulted in binding decisions by the courts. A broad and predominantly supportive media discourse was conducive to cultivating public opinion. These analyses support the conclusion that legal mobilization tends to directly influence law and legal practices. It has a socializing effect on the population and their legal consciousness. In aiming at both state and society, these legal strategies of the women’s movement are a modest but crucial success for democratic consolidation.