This is the fourth essay in a special eight-part series on Feminist Constitutionalism, organized by Melina Girardi Fachin as part of the project ‘Transforming Judicial Outcomes for Women in Canada and Brazil’, which is funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). For more information about Feminist Constitutionalism, please email Melina Girardi Fachin at melinafachin@gmail.com.
—Jenna Sapiano, Visiting Research Fellow, Kroc Institute for International Peace Studies, University of Notre Dame
Feminist constitutionalism explores ‘the relationship between constitutional law and feminism by examining, challenging, and redefining the very idea of constitutionalism from a feminist perspective’ (Baines and Rubio-Marín 2017, 966). It is a normative and analytical project of rethinking constitutional law and theory. It provides a starting point to ask if a constitution can be feminist. Constitutions have been called democratic, socialist, and authoritarian. However, as Shreya Atrey has noted, ‘no constitution has declared itself “feminist”’ (2023, 612) Constitutions, arguably, are ‘gendered and [have] been for centuries’ (Sapiano and Baines 2019, 1). Is it, therefore, even possible for a constitution to be feminist? There is, unfortunately, ‘no checklist of constitutional provisions which is considered to cumulatively render a constitution feminist’ (Atrey 2023, 612). So, how can we know if a constitution is feminist? Constitutions alone cannot transform patriarchal societies or ‘accord agency where none previously existed or where the intention to create it is absent’ (Sapiano and Baines 2019, 1). However, ‘[c]onstitutions carry important weight for the realisation of women’s rights’ (Narain 2024, 3).
Even if we know and accept this to be accurate, we are still far from defining a feminist constitution. For a constitution to be feminist, must it enshrine substantive equality? But if substantive equality is not possible, is formal equality sufficient? Is a federal system more feminist than a centralised system? Is a presidential or parliamentary system more feminist? The Global Gender Equality Constitutional Database, created by UN Women, is a repository of over thirteen thousand gender equality related provisions from 194 global constitutions. The database provides insight into the types of gender equality provisions that may be used to develop a ‘checklist’ of provisions that could be used to ‘render a constitution feminist’. Based on the database, the constitution with the highest number of provisions is the Constitution of Ecuador (2008, rev 2021), with 233 provisions, followed by the Constitution of Bolivia (2009), with 200 provisions. The Constitutions of Brunei Darussalam (1959, rev 2006) and Australia (1901, rev 1985) have the lowest number of provisions, with 20 and 21, respectively. The number of gender equality provisions in a constitution, however, is not enough information to tell us if the constitution is feminist. Instead, it is the types of provisions and the strength of these provisions.
What, then, does a cursory analysis of the gender equality related provisions coded by the UN Women database tell us? One of the first observations is that only three constitutions – Guyana, Argentina, and Bosnia-Herzegovina, explicitly reference the Convention for the Elimination of All Forms of Discrimination Against Women. (CEDAW). The Constitution of Guyana stipulates that every person is entitled to the rights enshrined in the international treaties Guyana has acceded to, including CEDAW (Art 154A(1)). The Argentinian Constitution places international treaties on the same level as the Constitution, which must be understood as complementary to the rights contained within the Constitution (Art 22). Finally, the Constitution of Bosnia-Herzegovina lists CEDAW as one of the applicable human rights treaties (Annex 1). Should incorporation of CEDAW, the so-called ‘international bill of rights for women’, be the benchmark for a feminist constitution? This small number tells us more about a state’s relationship with international law rather than its protection of women’s rights.
Interestingly, two constitutions have provisions prohibiting the use of the death penalty on women (Guatemala and Zimbabwe) and two have provisions prohibiting the use of the death penalty on pregnant or lactating women for two years after they have finished breastfeeding (Sudan and South Sudan). Is this feminist? It is much more common for a constitution to prohibit the death penalty rather than its application to women or pregnant and breastfeeding women.
Several constitutions include quotas for women’s participation in national and subnational bodies. The Zimbabwe constitution, for example, requires that the
State must take all measures, including legislative measures, needed to ensure that—
(i) both genders are equally represented in all institutions and agencies of government at every level, and
(ii) women constitute at least half the membership of all Commissions and other elective and appointed governmental bodies established by or under this Constitution or any Act of Parliament (Sec 17).
The Kenyan Constitution requires political parties to alternate between male and female candidates on party lists for elections, guaranteeing more representative legislative national and subnational bodies (Art 90). The Kenyan Constitution also guarantees that sixteen seats in the Senate are specially reserved for women, whom political parties appoint according to the proportion of members elected (Art 98(1)(b)). However, simply bringing women into decision-making spaces or having women in leadership positions does not guarantee the protection and promotion of women’s rights or a feminist agenda; as Vivien Hart has argued, ‘[i]f a political system neglects women’s participation, if it evades accountability for women’s rights, it fails half of its citizens.’ Neither women’s participation in the constitution-making process nor the adoption of gender quotas in the Constitution are enough for a constitution to be feminist.
Constitutional protections and guarantees extend into the private sphere through the constitutionalisation of family and married life. Some constitutions protect maternity leave, such as the Constitutions of Timor-Leste (Sec 39(4)), Armenia (Art 83), Portugal (Art 68(3)) and Zimbabwe (Sec. 65 (7)). Some constitutions enshrine paternity leave, like the Constitution of Brazil, which protects paternity as provided by law (Art 7 XIX). The Constitution of Brazil, however, protects ‘maternity leave without loss of job or wages for a period of one hundred-twenty days’ (Art 7 (XVIII)).
Usually, within sections on family and married life, some provisions unproblematically connect women and children, such as the provision in the Myanmar Constitution that states: ‘Mothers, children and expectant women shall enjoy equal rights as prescribed by law’ (Sec 351). The Chinese Constitution provides that: ‘Marriage, the family, and mother and child are protected by the state’ (Art 49). Interestingly, in the same article, the Constitution requires that: ‘Both husband and wife have the duty to practice family planning’ (Art 49).
While these observations may fascinate because of what they reveal about these constitutions, they do not bring us closer to determining what provisions call for labelling a constitution feminist. We know there is a global backlash against women’s rights and the constitutional protection of women’s rights may act as a buttress against further erosion of these hard-won (but easily lost) rights.
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