Gender stereotyping can breach the rights of men and women alike, irrespective of prevailing social attitudes or perceptions of ‘man’s primordial role’, Europe’s human rights watchdog ruled today. It said that it would not be in the public interest to allow someone’s choice of employment to imply that he or she had chosen to waive the right not to be discriminated against.

The case before the European Court of Human Rights in Strasbourg, Konstantin Markin v Russia, was whether a military serviceman could be refused parental leave when such leave is available to servicewomen. The court voted 16 to one that such a difference in treatment on gender grounds violated article 14, prohibition on discrimination, and article 8, right to private and family life.

The court ruled that local differences in how men and women were viewed or treated could not justify sex discrimination. It said: ‘References to traditions, general assumptions or prevailing social attitudes in a particular country are insufficient justification for a difference in treatment on grounds of sex. For example, states are prevented from imposing traditions that derive from the man’s primordial role and the woman’s secondary role in the family.’

The court dismissed the Russian government’s defence of positive discrimination. ‘The different treatment of servicemen and servicewomen as regards entitlement to parental leave is clearly not intended to correct the disadvantaged position of women in society or "factual inequalities" between men and women,’ it said.

It also dismissed the government’s argument that, by signing a military contract, the applicant had waived his right not to be discriminated against. ‘In view of the fundamental importance of the prohibition of discrimination on grounds of sex, no waiver of the right not to be subjected to discrimination on such grounds can be accepted as it would be counter to an important public interest,’ the court ruled.

The court added that such differences in the treatment of the sexes perpetuated gender stereotypes and was ‘disadvantageous’ to women’s careers and men’s family life.