This is the eighth and final 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.
—Silvia Suteu, Associate Professor, University College London (UCL) Faculty of Laws
At a time of gender equality regression and backlash, can feminist constitutionalism offer the tools to resist? More narrowly, can its multilevel instantiation, understood as a constitutionalism embedded in a web of supranational norms and institutions, still offer reason for optimism? In plainer terms, when living through widespread retreat and de-legitimation of international bodies and of the very idea of supranational cooperation, should feminist constitutionalism retain its cosmopolitan orientation? I will argue that it should.
Gone are the days of boundless optimism about international human rights, and women’s rights within them. This belief in the necessity and potential of supranational accountability was understandable. For as Catharine MacKinnon remarked, national sovereignty “is defined by a private/public line at its border” and states jealously guard against its encroachment that might bring accountability (MacKinnon 2006, 6). International law offered the promise of piercing that divide.
Nor has this hope gone entirely unrewarded. Obscured by the sense of generalised regression, we may miss evidence showing where international women’s rights law has advanced equality in concrete cases. As Grainne de Burca has recently shown, national women’s rights groups continue to mobilise around international human rights treaties, in particular the UN Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), to articulate their demands. And as others have argued, there remains much more interpretive potential for CEDAW to be deployed effectively to address the thorny issue of gender-based poverty (see here and here).
What of the backlash?, I hear the sceptics ask. It is undeniable that we continue to witness sophisticated, transnational, well-funded, and concerted efforts to dial back the clock on gender equality advances, retrench traditional gender roles and the so-called ‘traditional’ family, and relegate women once more to their sacrificial role as carers away from the public sphere. Look no further than Europe for one of the starkest examples. The rise of the war on so-called ‘gender ideology’ is nominally centred around the Istanbul Convention but really amounts to a wholesale rejection of the most fundamental gains of the women’s rights movement, key among them the idea that gender is socially constructed and sex is not destiny. Several states in Central and Eastern Europe continue to refuse to ratify the Convention, simultaneously claiming it is a Trojan horse meant to upend traditional gender roles (to which a feminist would say – bring it on!) and that they already do enough to combat violence against women, so it is unnecessary (statistics beg to differ). The discourse and toolkit have spread far beyond the region, however, and its victims are not just women’s rights, but also the rights and very recognition of the LGBTQI+ community.
The picture is not entirely bleak, however, even while European institutions have been slow to react. The European Court of Human Right’s jurisprudence on gender equality is a work in progress and in many respects must play catch-up to its international counterparts. Nevertheless, in recent years we have seen it recognise violence against women as a structural problem (Opuz v Turkey (2009)), a state duty to combat gender stereotypes (Konstantin Markin v Russia (2012), the beginnings of an intersectional approach to gender-based discrimination (Carvalho Pinto de Sousa Morais v Portugal (2017)), and a positive duty for states to adopt a legal framework ensuring the recognition of same-sex couples (Fedotova v Russia (2023)). Gaps still remain, not least its continued refusal to also read a right to abortion into the European Convention, last entertained in the ML v Poland (2023) case on Poland’s restrictive abortion regime.
The EU itself, having vacillated for years on ratifying the Istanbul Convention (which would thereby make it applicable to all Member States, regardless of their own refusal to ratify) finally agreed to do so in 2023. We have already begun to see the impact of this. In January 2024, the Court of Justice of the EU, relying on the Istanbul Convention, found that women who have fled their country of origin on account of violence experienced, including in the family, may be regarded as constituting “particular social group” and may be entitled to refugee status under EU law.
But why look to Europe at this time when, I’d argue, normative innovation is more likely to happen elsewhere? In fact, I would say one of the key features of our new reality is that intellectual, moral, and, yes, normative leadership in the area of women’s rights and gender equality more generally comes from the Global South. Consider some of the advances on gender equality emanating from the Inter-American Court of Human Rights, including its recognition of obstetric violence in Brítez Arce v Argentina (2022) as a human right violation and its condemnation of El Salvador’s draconian criminalisation of abortion seekers and providers in Manuela v El Salvador (2021). Already back in 2017, in an advisory opinion, the Inter-American Court recognised sexual orientation and gender identity as protected categories under the American Convention. This in turn gives rise to a legal duty for states to recognise same-sex marriage as well as guarantee the right to change public records and identity documents to conform to a person’s gender identity. As other posts in this series have shown, the Inter-American Court’s impact on advancing gender equality at the domestic level is indisputable, while still allowing for a plurality of approaches.
Mine is thus a call to not give up on the supranational dimension of the fight for gender equality, even while international legal norms and institutions continue to be contested. Contestation in the name of greater gender equality should be welcome, and updating international and constitutional commitments to make them more responsive, intersectional, inclusive, and substantive would be a positive step. But let us not mistake regression and backlash for such contestation. As we know, autocrats no longer reject but seek to transform international law in their image (see Tom Ginsburg’s recent book mapping this shift), and they are ever more adept at weaponizing women’s rights to achieve their aims. Feminist multilevel constitutionalism can offer valuable tools to resist.
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