The "wobble" of the gender (and children's) perspective in recent case law: can "maternity damage" (even single-parent) be compensated through Social Security without its total judicialisation?

On the occasion of Supreme Court Rulings 111/2023, of 8 February, 167/2023, of 27 February, and 169/2023, of 2 March

Abstract

By legal imperative and international law mandates, the jurisprudence of the Social Chamber of the Spanish Supreme Court has been applying the gender perspective for years, at least at the level of hermeneutical discourse, especially in the field of Social Security. However, an in-depth study of its jurisprudence reveals a much less positive balance. Precisely, in recent months, the Social Chamber of the Supreme Court has handed down a series of sentences in the field of Social Security in which the application difficulties are exposed, as well as the differences in positions within the High Court, both from the gender perspective as well as the childhood perspective (best interest of the child). This expository and critical legal analysis aims to account for three of the most relevant judgments (two of them related to the maternity supplement ex art. 60 General Law on Social Security, the third related to birth leave for single-parent families ex arts. 177 et seq. General Law on Social Security and 48 Workers' Statute). It is clear from their conflict that two of them have been issued with private votes and in a scenario of extreme disparity of criteria of the appeal courts that, in certain cases, have gone beyond the interpretative function of the laws to venture into an authentic, and controversial, creative function.