El principio de igualdad y los permisos parentales en el contexto nacional y comunitario

Abstract

During the nineties, European law developed a twofold regulation regarding leaves due to the birth of children: maternity leave and paternal leave. This regulation is in force today both in national and European law. In Spain, this regulation has been criticized for not guaranteeing the aim of the principle of equality between men and women. Hence, a new way has been developed with a cross-cutting gender approach. This legal experiment has contributed to confusion both at social, political and legal level. This is indicated by the fact that despite the rich line of argumentation provided by the Constitutional Court judgments in two appeals for amparo on paternity leaves, a great deal of criticism emerged for not applying that approach. The resistance to accept the case law and the current regulation is not only striking but it also highlights the absolute omission and reference to scientific data. This work explains the causes based on a narrow understanding of the equality principle and it proposes normative changes that might help to unify the criterion and the legislation.

Keywords

• protected legalasset
• constitutional court
• principle of equality
• parental leave
• mainstreaming