Symposium on Chilean Referendum Part III: A Feminist Rethinking of the Chilean Constitution?

[Editor’s Note: I-CONnect is pleased to feature a five-part symposium on the recent Chilean referendum authorizing a new constitution-making process. The symposium was organized by Professors José Francisco García and Sergio Verdugo, whose introduction is available here.]

—Marcela Prieto Rudolphy, USC Gould School of Law[*]

“El patriarcado es un juez, que nos juzga por nacer. Y nuestro castigo, es la violencia que no ves,” (Patriarchy is our judge that imprisons us at birth. And our punishment is the violence you don’t see) Chilean women sang in 2019 to mark the International Day for the Elimination of Violence Against Women. The chant, “Un Violador en Tu Camino” (A Rapist in Your Path), created by LasTesis, resonated with thousands of women across the world too. In Chile, the anthem was part of a series of demonstrations taking place since October 2019, which were calling, among other things, for a new Constitution.

The Chilean feminist movement soon made its way into the halls of Congress: “Never again without us” was the new mantra, which in March 2020 materialized in Congress’s approval of a constitutional reform that would ensure gender parity in one of the drafting bodies contemplated for the Chilean constitution-making process. The bill followed the “Acuerdo por la Paz y la Nueva Constitución” (Agreement for Peace and a New Constitution), signed on November 15, 2019 by a broad political coalition. The Agreement manifested the intention to initiate a constitution-making process through a referendum, where Chileans would vote on whether to draft a new Constitution and what kind of constitution-making body would be in charge of the drafting: a Constitutional Convention,composed entirely of elected representatives, or a Mixed Constitutional Convention,formed by members of Parliament and elected representatives. The Constitutional Convention’s electoral system, approved in March 2020, requires gender parity in the nominations of candidates and employs a corrective mechanism to achieve (near) gender parity in the voting results of each electoral district. This will ensure that the underrepresented gender—whether male or female—will not fall under 45% and that the overrepresented gender will not rise over 55% in the Constitutional Convention.

This past Sunday, Chileans voted for a new constitution. They also voted for the “Constitutional Convention.” Had the Mixed Constitutional Convention option won, parity rules would have applied only to the delegates democratically elected. Thus, a vote in favor of the Constitutional Convention, one dares hope, was also a vote for gender parity. Indeed, previous polls showed that gender parity had significant support among respondents of both genders, and particularly among women.

For the first time in modern constitutional history, “women’s foundational exclusion” from constitution-making will be remedied. Until now, women’s participation in constitution-making has occurred predominantly through civil society and grass-roots initiatives, although women have come to make up 30% and more of some recently appointed or elected constitution-making bodies, such as Ireland’s Constitutional Convention. Chile can be seen, perhaps, as the culmination of these efforts.

The Chilean result is a major feminist achievement. Now the feminist struggle will take place within the Constitutional Convention: parity might open the door for a feminist rethinking of the Chilean Constitution.

What would a feminist rethinking of the Chilean Constitution look like? In a very well-known article, Hilary Charlesworth and Christine Chinkin argued that if women’s lives and experiences had contributed to the shaping of international values, jus cogens and human rights norms would be radically altered. Fundamental international norms, in other words, have a gender—their development has privileged the experiences of men over those of women.

Similarly, one can think of the radical ways in which constitutional norms—especially those that dovetail with international human rights norms—could be altered were they to be shaped by women’s interests and experiences; were they responsive to the ways “in which being a woman is in itself life-threatening and the special ways in which women need legal protection to be able to enjoy their right to life.” A constitution centered around women’s concerns could challenge the very idea that women’s interests are “special” and men’s are the “default.” This might be beneficial not just to women, but to other marginalized groups too. It is also important not to underestimate the expressive significance it would have to entrench these interests as constitutional norms—the significance of women’s experiences determining what is seen as part of the most fundamental norms in a country.

Constitutions are traditionally conceived of as squarely in the realm of the “public,” concerned mostly with the relations between the State and its citizens. As is well known, this dichotomy between the private and the public has significant implications for women, given that large parts of women’s lives are often conducted “outside of the public sphere.”

It is precisely in this “private” sphere where women are often mistreated, silenced and marginalized, burdened with unfairly distributed care-taking responsibilities, forced to carry unwanted pregnancies to term, assaulted, raped, and murdered. The State is therefore not the only, and sometimes not even the primary, threat to women. Or, perhaps more accurately, the State can threaten women not just through the actions of its officials—which it does—but also through its silence and inaction in the face of violence committed in the “private” sphere. A constitutional right to be free from violence, domestic and otherwise, would contribute to dismantling this dichotomy. This is but one example to demonstrate that the very definition of the public and the private might be at stake in Chile’s constitution-making process.

A feminist rethinking of the Constitution could also challenge the division between civil and political rights, on the one hand, and economic and social rights, on the other. The current Chilean Constitution is structured around this dichotomy and gives primacy, in terms of enforcement through constitutional actions (habeas corpus and Recurso de Protección), to civil and political rights. Yet, economic and social rights hold particular importance for women. There is, of course, the gender wage gap: the average income gap in Chile in 2016 between men and women was 31.7%. Poverty is also distinctively gendered, and Chile is no exception: 54.3% of people in situation of extreme poverty according to income were women in 2017.

With gender parity in the Constitutional Convention, the path may be open for the Chilean Constitution to include guarantees against sexual and domestic violence, rights to equality in pay, reproductive rights, a minimum standard of living, gender quotas, and, more generally, gender equality (already contemplated in the current Constitution). Even though it is an open question what the best mechanisms for securing these guarantees is (and whether constitutional actions are appropriate to do so), their inclusion in the new Constitution would have expressive importance of its own. It could also have implications for the interpretation and creation of future legislation.

There are, however, significant struggles ahead. First, the Constitutional Convention requires proposed norms to be approved by two-thirds of its members. Unfortunately, previous attempts at legislating abortion rights and domestic violence prohibitions in Congress were met with resistance from some male legislators, who suggested during the debate that “women lie.” This means that any proposals discussed in the Convention affecting women will have to overcome entrenched misogynistic norms that, as the abortion and gender violence examples show, exist in Chile’s predominantly male political culture.

Second, it is not enough to ensure that women are present; we also need to be attentive to the power dynamics within the Constitutional Convention. Patriarchal structures and gendered roles can be reproduced within the Convention itself in depressingly familiar patterns: women taking notes; men talking (sometimes over women); women listening. These patterns are supported by pervasive gender biases in society. Recent studies demonstrate that approximately 91% of men and 86% of women show at least one clear bias against gender equality in areas such as politics, economics, education, intimate partner violence and women’s reproductive rights. About 50% of men and women interviewed across 75 countries think men make better political leaders than women.

Even though there is evidence of progress in Chile regarding the gender biases held by both women and men and Chile has elected a female President twice (Michele Bachelet), women’s representation in Congress is still below the average in Latin America. Moreover, in the 2017 Chilean election of deputies, as Verónica Undurraga notes, political parties nominated women in districts where they had no chance of being elected, and male candidates had access to significantly more financial support than their female counterparts. Such realities undermined the potential effect of the law requiring a mandatory 40:60 gender equilibrium on nominations at a national level.

Third, and perhaps most obviously, women’s interests and opinions vary, even regarding distinctively gendered issues. For example, a 2018 poll showed that 27.9% of Chilean women think that abortion should be forbidden in all circumstances; only 25.7% of Chilean men hold this position. The division of women along religious lines, which can determine positions concerning reproductive rights, has proved difficult to overcome in constitution-making processes that have taken place in Morocco, Tunisia, and Colombia. This is even more pressing given that Chile remains a majority Christian country.

Division along religious lines is certainly not undesirable per se, nor is the division of women across different party lines. After all, pluralism is essential to democracy. This division, however, does mean that certain constitutional provisions that are central to feminist aspirations, particularly those pertaining to reproductive rights and LGBTQ+ rights, will not receive unanimous support from all women participating in the Constitutional Convention.

Fourth, there are some intersectional challenges we need to be aware of, particularly pertaining to the rights and interests of the LGBTQ+ community, people with disabilities, various racial and ethnic groups, social classes, and aboriginal peoples in Chile. Around 12.8% of the Chilean population identifies as belonging to one of the country’s aboriginal peoples, yet no relevant quotas were established for the Constitutional Convention. Chile is also a deeply unequal country, and as such, it remains unclear whether women will be able to bridge these differences and act collectively or whether they will divide along lines of class, ethnicity, and so on, to the detriment of those less privileged.

Now is precisely the time to think about how to mitigate some of the challenges just discussed. Ensuring gender equality and a feminist rethinking of the constitution will not arise simply from having an equal number of women and men in the room. But, although parity is not sufficient, it is, nonetheless, a significant step in the right direction: it has been suggested that the lower the number of women in a group, the less they are likely to participate and have influence in it.

There are also issues around which women are likely to coalesce: after all, even if some women have occasionally benefited from patriarchal structures, all women share the experience of living—and being harmed—in a patriarchal society. Indeed, WHO global estimates indicate that 29.8% of women in the Americas have experienced some form of violence from partners and/or sexual violence from non-partners. A life without violence is, unsurprisingly, a common aspiration that is likely to transcend ideological differences among women. The same can be said about the protection of children and about gender discrimination in general.

Even though misogynistic biases are prevalent in society, and as such, we can certainly expect them within the Constitutional Convention, efforts can be made to create a gender-sensitive environment that does not reproduce them. One way to counter these biases is to make people aware of them. This sort of effort could be undertaken in the Chilean Constitutional Convention, once its members are elected.

Finally, experiences in the Liberian constitution-making process suggest that women can more effectively push for shared agendas when they have the opportunity to develop proposals together and prior to plenary discussion in the constituent-body. Feminist members of the Constitutional Convention could adopt this strategy and use it to build alliances regarding reproductive and LGBTQ+ rights, whether with men or women.

In fewer words, Chilean feminists have achieved parity in the Constitutional Convention. The Convention itself will now be a site of feminist struggles, which are just about to begin.

Suggested citation: Marcela Prieto Rudolphy, A Feminist Rethinking of the Chilean Constitution? Int’l J. Const. L. Blog, Nov. 5, 2020, at: http://www.iconnectblog.com/2020/11/symposium-on-chilean-referendum-part-iii-a-feminist-rethinking-of-the-chilean-constitution/

---

[*] Many thanks to Michele Krech, Naama Goldberg, Gabriele Wadlig, Carla Leiva, and Felipe Jiménez for their helpful comments and suggestions on previous versions of this post.