Art. 51 Cost. e accesso delle donne alla magistratura: riflessioni sulla parità di accesso ai pubblici uffici dall’Assemblea costituente alla legge n. 66 del 1963

The essay, starting from the recognition of women’s right to vote and stand for election, analyzes the structure of the constitutional provisions regarding equality between men and women and equality in work and in access to elec- tive positions and public offices, with a view to reconstruct how the battles, fought in the Constituent Assembly by the “Constituent Mothers” in order to prevent the principle of equality and non-discrimination on the basis of sex from being emptied of meaning, determined its structure. The slow implementation of the art. 51 of the Constitution, considered non- preceptive for many years by jurisprudence and doctrine, determined that the law on women’s access to the judiciary was approved only in 1963 and only after the Constitutional Court expressed itself favorably on the matter, inter- vening a few years earlier in lieu of the Legislator, affirming its fully precep- tive nature. This slowness, due to the traditional Italian cultural situation, still determines today that the path to achieving full equality between men and women can- not yet be considered completely concluded. As proof of this, for example, the constitutional amendments to the art. 51 and 117 comma VII Constitution introduced in the early 2000s, as well as the provisions concerning the direct election of the presidents of the Regions with special statute and of the auton- omous Provinces of Trento and Bolzano introduced with constitutional law no. 2 of 2001. Despite this, it cannot fail to be noted that these measures have demonstrated little effectiveness in fundamentally removing the many obstacles to the full realization of the principle of equality, considering that the under-represen- tation of women in politics and decision-making centers is still a very present reality in our country. If it’s possible to believe that the lack of homogeneity and contradictory na- ture of public policies on gender equality is one of the causes of this phenom- enon, it is equally possible to believe that they can be overcome thanks to the adoption of a complex notion comprising a plurality of distinct norma- tive principles which includes some notions associated with the concept of “equality” (understood as a universalistic ideal of citizenship that makes men and women equal), as well as some linked to that of “difference” (understood as a reference to the particular abilities, talents, needs and interests of women, which evidently are different from those of men).