Constitutionalizing gender: Deterrence instead of equality

Abstract This article uses Bulgaria as a case study to demonstrate how the constitutionalization of gender, shaped by local context, can impede progress toward women’s rights and gender equality. It argues that the Bulgarian Constitutional Court—rather than the legislature or activist movements—has paradoxically emerged as the central force driving this process, while entrenching a particularly regressive constitutional framework on gender. The analysis centers on two recent cases that have brought this issue from the margins to the forefront of constitutional debate. The first is a 2018 ruling that declared the Council of Europe’s Istanbul Convention unconstitutional, citing, among other reasons, its alleged promotion of a hidden “gender ideology.” The second is a 2021 judgment that reinforced a constitutional interpretation of “sex” as a biologically determined binary, effectively barring legal gender recognition. The article further explores how this jurisprudence has embedded gendered stereotypes at the constitutional level while legitimizing anti-gender and anti-rights narratives that were previously confined to political and civil society discourse. It contends that this process has weakened existing protections for women’s rights, gender equality, and broader fundamental rights, creating a chilling effect on future progressive judicial and legislative developments in these areas.