Women and the cost of transition to democratic constitutionalism in Spain

There is overall consensus that the Spanish Constitution of 1978 has played a crucial role in consolidating Spain's democracy, and that, women, as a group, have largely benefited from this transition to a new democratic order. Indeed, the connection between constitutional democracy and the conditions for women's emancipation, although not completely unchallenged, is generally made. However, the tensions brought about by the process of structural adaptation to the modem anti-discrimination doctrine are rarely, if ever, raised, as a specific constitutional concern. In this article, the author discusses a line of constitutional cases in response to pre-constitutional legislation that forced women to abandon their employment at marriage, and criticizes the Spanish Constitutional Court for not having been sufficiently sensitive to the intergenerational and transitional aspects involved. The author concludes that new constitutions and constitutional courts, with the task of legally framing a society's transition to a new political regime, should address this and similar issues, identifying an agenda of items of 'transitional constitutionalism', which reflects the phenomenology of major political transformations and discusses, among other things, the minimal obligations of fairness in the transitional process.