Legal Expertise, Emotions and Gendered Public Discourse: A Debate on Ban of Fathers' Presence at Childbirth in the Czech Republic

In 2020, the Czech Government implemented a ban on fathers' attendance at childbirth as a precautionary measure to curb the spread of COVID-19. This decision has triggered a heated media debate among legal experts and the public, with a particular focus on human and women's rights. The objective tool of the proportionality test has been at the center of this debate. The interpretive analysis of this debate reveals the dominant meanings and narratives on this measure, shedding light on how legal professionals perceive emotions within the context of the proportionality test and how this perception correlates with the recognition of fathers' presence at childbirth as a fundamental right for women. The media debate highlights that only some legal experts view the ban on fathers' presence as a violation of women's rights. While certain legal expertise emphasizes the importance of objectivity and rationality within the proportionality test, thereby excluding emotions, others argue with an emphasis on women's rights and admit emotions as a relevant factor alongside expertise. This paper contends that by neglecting emotions from legally significant argumentation, legal expertise casts doubt on the potential of the proportionality test to reach a legitimate conclusion. This is because the infringement of fundamental rights is associated with human integrity, autonomy, dignity, and other individual freedoms, which inherently include, reflect, and consist of emotionality. The paper adds to the scholarly literature on proportionality by underscoring the heuristic value of the sociology of emotions in analyzing different meanings of emotions and their variability within public debates on legal matters.