Gender, Climate, and the Illusion of Neutrality

This blog post examines the stance of the European Court of Human Rights (‘ECtHR’, ‘the Court’) in Verein KlimaSeniorinnen Schweiz and Others v. Switzerland through a gender lens, questioning whether its reasoning fully addresses women’s systemic representational disadvantages both across generations (intergenerational) and within the present generation (intragenerational, para. 149). In so doing, it further explores how the Court’s reliance on supposedly ‘neutral’ standards reinforces existing structural biases, effectively compelling women to conform to male-centred frameworks rather than ensuring substantive equality.

The ECtHR’s Approach to Inter- and Intragenerational Inequities in Climate Jurisprudence

In Verein KlimaSeniorinnen Schweiz and Others v. Switzerland, the complaint was brought by four elderly women and a non-profit association governed by Swiss law. The applicants anchored their arguments on, inter alia, intergenerational equity while relying on Articles 2 and 8 of the European Convention on Human Rights (‘ECHR’) (paras. 22–26). This marked the first time the ECtHR found a state responsible for the violation of Article 8 related to climate change on the merits (para. 573). Furthermore, the Court acknowledged that anthropogenic climate change poses a current and future threat to the enjoyment of human rights protected under the ECHR (para. 436).

The Court highlighted that the legal obligations under the ECHR primarily protect individuals currently alive within the jurisdiction of the Contracting Parties, implying its focus on intragenerational equity (para. 484). Yet, emphasizing future threats, the Court briefly underscored the obligation to protect the climate system for the benefit of present and future generations under Article 3 of the UNFCCC (for a definition of future generations, see Humphreys’ ‘Against Future Generations’ and scholars’ reply), hinting at intergenerational equity. The Court’s phrasing of ‘burden-sharing’ while examining intergenerational equity poses an interesting approach, as it points at the ‘vulnerability’ of future generations. As the Court’s reasoning suggests, this vulnerability arises because future generations lack representation in current decision-making. Yet, they will bear the escalating consequences of current failures to address climate change effectively (paras. 419, 420). This ‘burden-sharing’ also entails a practical aspect for the benefit of future generations, hinting at the obligation to develop effective national procedures and frameworks. The content and scope of these obligations came down to procedural safeguards, i.e. access to information concerning climate policies and risk assessments and the right to public participation in decision-making (see here and here, paras. 420, 554).

While finding a violation and emphasizing the absence of full participation in the decision-making of the groups most affected by climate change, the Court does not integrate its recognition of women’s specific vulnerabilities into its reasoning on the positive obligations arising under Article 8. This leads us to the gender perspective of intragenerational and intergenerational equity.

The Illusion of Neutrality: Structural Bias in Legal Standards

The Court acknowledged that both current and future impacts of climate change most heavily affect vulnerable groups in society ‘who need special care and protection from the authorities’, and who are at a representational disadvantage (paras. 410, 485). Here, it seems, the ECtHR implied that participation in decision-making is unequal even for the present generation. It stated that ‘the members of society who stand to be most affected by the impact of climate change can be considered to be at a distinct representational disadvantage’, including women, especially elderly women, who were deemed particularly susceptible to the adverse effects of climate change (see, paras. 529–531, IPCC report).

This interrelation between the adverse effects of climate change, gender, and inequality has also been recognised within the UNFCCC framework, in documents such as the Gender Action Plan and the Enhanced Lima Work Programme on Gender. For instance, in the aftermath of climate-related crises, women and girls are more exposed to gender-based violence, and girls are less likely than boys to continue their education. Moreover, despite attempts to include women – especially from rural and indigenous communities – in decision-making and introducing gender-disaggregated data for analysis and solutions, the foundational structural and institutional barriers seem to remain largely and conceptually unaddressed. Issues such as unpaid household labour, unequal power relations, or unequal land rights still prevent women from full participation or representation.

It remains unclear whether the broad procedural safeguards, i.e. access to information concerning climate policies and risk assessments and the right to participation (para. 554), will fulfil the Court’s ‘practical and effective’ standard that ensures full participation or representation of women in the decision-making (cf. para. 545). As governance and (political) decision-making remain anchored in male-centred norms, barriers will remain despite the procedural safeguards as they stem from a broader systemic issue. Achieving gender equality within this model requires women to accommodate to institutions built on male-centred norms rather than critically assessing whether these institutions are adequate to ensure the substantial representation of women’s interests and needs, both intergenerationally and intragenerationally. Feminist legal scholars, like K.W. Cross, have long argued that forcing women to ‘fit’ into male-centred norms does not secure substantive equality. Instead, it merely perpetuates a norm that privileges male experiences as the default benchmark of reasonableness, assimilating women into the existing structures, including those envisioned by such procedural safeguards.

In Verein KlimaSeniorinnen, the Court acknowledged the vulnerability of women, particularly in cases of premature deaths or the specific challenges faced by elderly women. However, it does not sufficiently address their disadvantages of participation or representation stemming from such systemic inequalities both from the inter- and intragenerational perspective. This is particularly evident in the context of climate change and the adverse effects of heatwaves, where the Court’s recognition of gendered experiences remains unclear (see para. 517, compare with Synthesis Report by the FCC Secretariat and World Bank Group report). Hence, the Court reasoned that it is ‘often impossible to quantify the effects of the environmental nuisance at issue in each individual case and to distinguish them from the influence of other relevant factors such as age, profession or personal lifestyle’ (para. 517). We argue that this reasoning obscures the gendered experiences of harm (gender-differentiated impacts of climate degradation, including health and daily well-being, gender-based violence, access to education and training, income level and access to employment, or participation in decision-making are explained by, e.g. UNFCC Subsidiary Body, the World Bank, UNDP), instead reverting to an abstract notion of neutrality that fails to capture the intersectional vulnerabilities faced by elderly women.

Redefining Parameters for Equity

The Court acknowledged the complex chain of effects of climate change and the confluence of vague factors contributing to the increased vulnerability of elderly women. The unique harms faced by elderly women as a group or individual applicants due to heatwaves were presented to the Court, including the higher mortality rates and greater health risks (para. 66). Yet the Court’s assessment concerning this vulnerability ultimately corresponded to the ‘high intensity of exposure’ and ‘pressing need’ thresholds concerning harm. The application of these ‘especially high’ thresholds (para. 527), combined with the requirement of demonstrating ‘exceptional circumstances’ (para. 533), reflects a rigid approach that inadequately addresses the structural dimensions of gendered vulnerability. Moreover, the criteria for these thresholds lack clear parameters, raising the question of the standard against which they are measured.

As K.W. Cross observes, men or male experience are often regarded as ‘neutral’ and ‘universal’, serving as the standard against which the interests, experiences, and characteristics of the subordinated are measured. This raises the question of whether, despite establishing that ‘in each applicant’s individual case, […] the requirement of a particular level and severity of the adverse consequences affecting the applicant concerned is satisfied’ (para. 531), the Court’s reinforcement of high thresholds in an ambiguous manner risks perpetuating a framework that fails to adequately account for gendered disparities in harm. This outcome is symptomatic of a deeper problem in the conceptual architecture of gender equality and equity.

Furthermore, the substantial assessment concerning elderly women’s vulnerability encounters the ‘neutral’ (procedural) barrier of Article 34, through these high and exceptional thresholds. In other words, it is questionable whether merely recognizing the vulnerability of elderly women at the individual level, while subjecting them to high and exceptional thresholds or failing to sufficiently emphasize the structural dimensions of their gendered experiences of harm, suffices to provide effective protection. As highlighted by President Judge O’Leary’s question during the hearing, a different outcome could have emerged had the Court considered, as in Gorraiz Lizarraga (para. 38), an evolutive interpretation of victim status – one that responds to contemporary needs and fully accounts for the intersectional and gendered nature of harm in climate-related cases.

The Court’s interpretation through this ‘especially high thresholds’ fails to adequately account for the structural biases inherent in these frameworks, effectively compelling women to conform to a so-called ‘neutral’ standard that is, in reality, shaped by the average male experience. This ‘neutral’ standard, however, is far from neutral. It reflects a male-centric perspective that historically dominated legal systems. This assessment resembles another similar concept, the ‘reasonable person’ standard. Despite being presented as an objective measure, the reasonable person is frequently anchored in male norms, as argued by feminist scholars such as W. Parker and Ann C. McGinley. Valentin Jeutner describes it as a bias that ‘channels the prejudices of those who invoke the standard’, rather than mitigating it. In this case, the ECtHR’s reliance on a supposedly neutral standard, whilst reinforcing high thresholds, reduces the particular vulnerabilities of elderly women, forcing their lived experiences to conform to an ill-suited framework (see here and here).

Under this framework, women’s subjective characteristics – especially those of older women – seem to be implicitly assessed through a high threshold from the parameter of a ‘reasonable person’, meaning that of men, who supposedly inhabit a neutral standpoint, unaffected by factors such as bodily vulnerability, socio-economic constraints, or gender-based caregiving responsibilities (paras. 533-534).

Concluding Remarks

To conclude, by overlooking women’s embodied, gendered experiences, the Court’s approach reveals the deep-rooted flaws in existing gender equality mechanisms for addressing intragenerational equity. Its reliance on so-called ‘neutral’ standards reinforces male norms, limiting recognition of the compounded vulnerabilities faced by (especially elder) women during climate-induced crises. Yet intragenerational and intergenerational equity are inseparable: failing to address present inequalities weakens efforts to protect future generations. Only an intersectional approach that accounts for the interplay of age, gender, and social factors can ensure ‘practical and effective’ participation and representation for all.

This requires moving beyond frameworks that assimilate women into male-centred norms. Instead, legal and policy structures shall reconnect both women and men with their distinct gendered experiences and the broader natural environment, fostering a more holistic understanding of human-environment relationships. Such a shift not only addresses gendered harms but also strengthens our responsibility to future generations and the planet. By replacing instrumental, male-centric ‘neutrality’ with genuinely inclusive and ecologically attuned structures, we create a foundation for true intra- and intergenerational equity, tackling a systemic issue that spans across time.