A magistrate and the president of the Chamber disagree with the majority and say that the gender perspective could be applied
MADRID, 8 Mar. (EUROPA PRESS) –
The Supreme Court has upheld an appeal from the Prosecutor’s Office and has unified doctrine to reject double single-parent permits for birth and child care, seeing no legal coverage to endorse them, stressing that its function is “the application and interpretation of the norm, but not the creation of law”.
The magistrates of the Social Chamber have dismissed the request of a mother of a single-parent family who requested a benefit for the birth and care of her child in addition to what she had enjoyed. Thus, they have rejected that in the case of single-parent families a benefit be granted with twice the duration.
The case has reached the Supreme Court after the woman filed a lawsuit against the decision of the National Social Security Institute not to allow her to also enjoy the benefit for birth and child care that would correspond to the other parent.
The Social Court Number 5 of Bilbao dismissed that claim and, after filing an appeal, the case passed into the hands of the Superior Court of Justice (TSJ) of the Basque Country, which corrected the initial decision and agreed with the woman. Faced with such a resolution, the Prosecutor’s Office went to the Supreme Court to request that the doctrine be unified.
The Public Ministry considered the interpretation of the Basque TSJ “erroneous” and insisted that “the current regulation responds to a fully justified social policy” and that it was up to the legislator to “assess” the circumstances to modify said system.
It also argued that the fact that a working woman who forms a single-parent family only has the right to enjoy a single four-month permit does not constitute indirect discrimination.
In the sentence, collected by Europa Press, the Supreme Court explained that rejecting the argument of the Prosecutor’s Office and confirming the judgment of the TSJ “would imply several consequences that would significantly interfere with the normative order.”
As the magistrates have pointed out, “it would mean creating a new contributory benefit in favor of the parents of single-parent families which, in addition, would be strictly limited to doubling its duration” and would alter the “configuration designed by the legislator”.
In 31 pages, the court has reiterated that “an intervention of such caliber is far from what the constitutional organization of the State entrusts to judges and courts.”
The Supreme Court has stressed that “the intervention in the legal system that requires a claim such as the one that is sustained in the present procedure only corresponds to the legislator, without it being able to be replaced through judicial resolutions that go beyond their own jurisdictional functions.
The magistrates have stressed that the court is not responsible for “the modification of the Social Security benefits system, nor the modification of the organization of the suspension of the employment contract for reasons provided for by law.”
“What is being asked of us goes beyond what it means to ‘interpret and apply the law’ and falls within the scope of its creation,” the Supreme Court insisted, later adding that “the discussion about whether the resulting system of protection for single-parent families is or is not the best possible way that exceeds by far the functions of the courts”.
In this sense, the court has stated that the regulations that do not contemplate double permits for single-parent families “are not contrary to the letter or the spirit of the Spanish Constitution, nor are they outside international regulations, especially the European Union (EU) law”.
“The recognition of the sole parent of a single-parent family of the benefit for birth and care of a minor that would have corresponded to the other parent in cases in which said own benefit has already been recognized is not a requirement that derives from the Constitution, nor of any EU regulation, nor of any international agreement or treaty ratified by Spain”, he stressed.
The majority of the Chamber has defended that in this case it is not appropriate to apply the gender perspective “because there is no discrimination”, but rather an “eventual deficit of specific protection wanted and consented to by the legislator”.
This resolution has had the dissenting particular vote of magistrate Ignacio García-Perrote, to which the president of the Chamber, Rosa María Virolés, has adhered. In her opinion, the court should have dismissed the appeal of the Prosecutor’s Office and confirmed the sentence of the Basque Supreme Court because the woman “was entitled” to a double benefit as a mother in a single-parent family.
Both have concluded that the decision of the majority of the Chamber “does not contain any justification or reasoning for why in the present case it deviates from the doctrine” of the court itself.
Thus, they have stressed that “the principle of integration of the gender dimension obliges judges and courts to incorporate the gender perspective in the exercise of the jurisdictional power attributed” by the Constitution.
García-Perrote and Virolés have insisted that the Chamber, on previous occasions, has carried out an interpretation “based precisely on the best interest of the minor and the gender perspective.”
