—Mara Malagodi, The Chinese University of Hong Kong, Faculty of Law
[Editors’ Note: This is one of our biweekly ICONnect columns. For more information on our four columnists for 2021, please see here.]
In my next two posts I will explore the new frontiers of gender constitutionalism in Asia: (1) sexual and reproductive rights in this post, and (2) gender identity and sexuality in the next. Gender constitutionalism is a thriving and expanding area of law globally.[1]
Women and sexual and gender diverse people (SGPD) have made significant strides in claiming equal citizenship in the constitutional arena around the world. In particular, Asian jurisdictions over the last two decades have seen exciting new developments in terms of constitution making, constitutional litigation, and implementation of constitutional standards. As such, a context-sensitive comparative constitutional analysis brings to light the “opportunity structures” through which gender equality has advanced in the region. [2] The constitutional articulation of sex, gender, and sexuality reveals ground-breaking innovative approaches across different Asian jurisdictions, which bear important comparative lessons.[3]
The umbrella term “sexual and reproductive rights” denotes the constitutional and legal framework encompassing the issues of abortion, contraception, sexual health, maternal health, surrogacy, sterilisation, sex education, and education supporting informed reproductive decisions. The nature of these rights, their extent and degree of implementation represent politically contested terrain. In practice, deeply patriarchal social mores have for centuries shaped the legal structures regulating reproduction and patrolling sexuality. These legal frameworks have been historically designed to maintain control over women’s bodies, preserve patriarchal social hierarchies, and reinforce both the gender binary and heteronormativity. Over the last few decades, many social movements around the globe have campaigned to place the pursuit of individual well-being in matters of sexuality and reproduction at the centre of legal reforms in these areas. As a result, the constitutional arena has become a crucial battleground not just to safeguard individual autonomy, but also to change societal narratives about sexuality and reproduction and actualise this expanding set of rights.
The focus on the constitutional treatment of sexual and reproductive rights and their embattled nature illuminates the intimate relationship between gender constitutionalism and nation building in two respects. First, the foundational function of constitutions articulates a notion of “We the People” and the hierarchies that underpin that collective “We”. In this regard, Helen Irving convincingly argues that gender is often overlooked as a salient difference in theories of constitutional and national identity because it is considered non-disruptive of the social compact unlike ethnolinguistic and regional groups; instead, she invites “an understanding of the gendered character of the whole organic constitution”.[4] As Ruth Rubio Marín reminds us, “modern constitutionalism simply drew from the […] patriarchal differentiation between the public and the private spheres which emphasized the special, and biologically determined, role of women within the family. The principles of male dominance and hierarchy over married women in the family sphere went unchallenged”.[5] As such, the structural subordination of women to men has been pivotal to the construction of modern nation-states in the constitutional arena.[6] More specifically, the control by legal means of individuals’ sexuality and women’s reproductive choices became central to the ideological construction and the biological reproduction of the national community itself. As a result, constitutional change and legal reforms in this area face enormous obstacles because they are often construed as more or less direct assaults on the established social, moral, and religious order – and even as a threat to the survival of the nation itself.
Second, more recent constitutions feature an increasing number of fundamental rights – some of which even recognise explicitly sexual and reproductive rights. David Law has characterised this type of constitutions as belonging to the “universalist archetype”, under which the ideological narratives that underpin the legitimacy of the state also encompass international norms and standards.[7] As a result, international instruments like CEDAW, the decision of supranational courts, and best-practice examples from other jurisdictions have been increasingly deployed domestically to sustain the advancement of gender constitutionalism. Sexual and reproductive rights have also become part of this trend giving activists ammunitions to persuade state authorities in both the political branches and the judiciary to harness the legitimacy that arises from the international constitutional order. However, cosmopolitan constitutionalism often finds itself at odds with particularistic forms of constitutional nationalism, which are in turn sustained by historically specific forms of gendered hierarchies. In this context, demands for constitutional change in the areas of sexuality and reproduction are resisted by state authorities in the name of protecting the nation’s autochthonous social values and religious traditions. These narratives, however, have been historically constructed in gendered terms to establish and reinforce the dominance of hegemonic groups.
A comparative analysis of the constitutional treatment of sexual and reproductive rights in several Asian jurisdictions reveals a spectrum of approaches, which reflect a combination of nationalist, cosmopolitan, and pragmatic responses to demands for change in these areas. At the one end of the spectrum, we find more recent constitutions that include a vast array of justiciable fundamental rights. For instance, the 2015 Constitution of Nepal includes specifically under the rights of women, a right to safe motherhood and reproductive health, while the non-justiciable Chapter of Directive Principles, Policies, and Responsibilities of the State under the provision on social inclusion reiterate the importance of securing reproductive services and facilities. The clear constitutional underpinning of these rights since the 2007 Interim Constitution has facilitated the role of the Supreme Court, which has rendered a number of ground-breaking decisions in this area.[8] In India, while the 1950 Constitution does not explicitly recognise sexual and reproductive rights at the textual level, the Supreme Court has interpreted the right to life in an expansive fashion to encompass the right to privacy, which in turn subsumes key areas pertaining to sexuality and reproduction.[9] Building on comparative jurisprudence and the application of international standards, these judgments have moved away from the Roe v Wade approach that privileges autonomy and freedom from state interference over equality; instead, they focused on the concept of dignity in light of the profound intersectional inequalities that women face in accessing these rights. As a result, judicial activism has translated into the courts placing positive obligations on the state to actualise sexual and reproductive rights and guarantee access to these services, which has blurred the line further between judicial oversight and actual policy making by the courts.[10] On the one hand, notwithstanding the extensive statutory reforms that India and Nepal have initiated in matters of sexual and reproductive rights, these legislative frameworks are incomplete and retain an array of problematic features. On the other hand, the very progressive judgments rendered by the higher judiciary remain to a great extent not implemented – a painful reminder of the enduring gap between “law in books” and “law in action”.
At the opposite end of the spectrum, Singapore does not protect gender at the constitutional level, but the People’s Action Party delivered on its electoral promise to foster gender equality by enacting the Women’s Charter as early as 1961. As a result, most reforms towards women’s equal citizenship have been executive-driven and resulted from a pragmatic cooperation between governmental authorities and civil society. For instance, Singapore features one of the most permissive abortion laws in the world, whose adoption in 1969 was motivated more by economic pragmatism than constitutional concerns.[11] These rights, however, remain squarely within the nationalist social framework envisaged by the government.
On an intermediate position of the spectrum, we find a number of Asian jurisdictions where the influence of religious institutions on state authorities and the pivotal role of religious ideology in crafting a sense of national identity have resulted into different stumbling blocks for the advancement of sexual and reproductive health rights in the constitutional arena. South Korea, for instance, has witnessed repeated attempts by activists to pursue gender equality claims by constitutional means. It was only in the wake of the 2018 #MeToo movement that a broad coalition succeeded in persuading the Constitutional Court to decriminalise abortion in a bold jurisprudential move, notwithstanding the longstanding opposition of the religious right.[12] In the Philippines, instead, gender equality has advanced mostly through legislative reforms making impressive strides across many fields. In contrast, due to the prominent role of the Catholic Church in the country, the life of the foetus is granted explicit constitutional protection and the penal law retains to this day a complete ban on abortion, with the judiciary so far unwilling to intervene.[13]
The opportunity structures for the constitutional advancements of sexual and reproductive rights hinge on a number of factors both internal and external to the constitution. In my view, given the embattled nature of these rights, the broader the consensus that can be built through public discourse to support the reforms, the more far-reaching and enduring the effects. Ideally the political branches should spearhead these campaigns through in-depth and extensive public consultations, like those in Australia (2019) and New Zealand (2020) for the complete decriminalisation of abortion. Instead, judge-led initiatives, even when jurisprudentially innovative and inspiring, often point to a failure of the elected representatives to tackle a politically sensitive set of issues, either for fear of reprisal or ideological reasons. In this scenario, if the political branches do not get on board, in the end even the biggest advancements via the judicial route become precarious. The issue of abortion in the United States is a case in point.
#DesignTheLawNepal: Graphic explainer of the decision of the Supreme Court of Nepal on uterus prolapse. [14]
Suggested citation: Mara Malagodi, New Frontiers of Gender Constitutionalism in Asia, Part 1: Sexual and Reproductive Rights, Int’l J. Const. L. Blog, May 13, 2021, at: http://www.iconnectblog.com/05/2021/new-frontiers-of-gender-constitutionalism-in-asia-part-1-sexual-and-reproductive-rights/
[1] Beverley Baines and Ruth Rubio-Marin (eds.), The Gender of Constitutional Jurisprudence (CUP 2005); Beverley Baines, Daphne Barak-Erez, and Tsvi Kahana (eds.), Feminist Constitutionalism: Global Perspectives (CUP, 2012); Helen Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (CUP, 2008); Helen Irving (ed.), Research Handbook Series: Constitutions and Gender (Edward Elgar Publishing, 2017); Helen Irving and Ruth Rubio-Marin (eds.), Women as Constitution-Makers: Case Studies from the New Democratic Era (CUP, 2019); Catharine MacKinnon (ed.), Gender in Constitutional Law (Edward Elgar Publishing, 2018); Susan H. Williams (ed.), Constituting Equality: Gender Equality and Comparative Constitutional Law (CUP, 2009).
[2] Wen-Chen Chang, Kelley Loper, Mara Malagodi, and Ruth Rubio Marín (eds.) Gender, Sexuality, and Constitutionalism in Asia (Hart Publishing, forthcoming 2022)
[3] Holning Lau and Kelley Loper, “The European Union as Promoter of Equality in Asia: Beyond Economic Tools of Influence”, in T. Giegerich (ed.) The European Union as Protector and Promoter of Equality (Springer 2020) 487.
[4] Helen Irving “Constitutional Identity Theory and Gender: The Missing Referent”, Sydney Law School, Legal Studies Research Paper 17/56 (2017).
[5] Ruth Rubio Marín “Gendered Nationalism and Constitutionalism” International Journal of Constitutional Law 18:2, 442-443 (2020).
[6] Floya Anthias and Nira Yuval-Davis “Introduction” F. Anthias and N. Yuval-Davis (eds.) Woman-Nation-State (Palgrave, 1989), 1-15.
[7] David Law “Constitutional Archetypes” Texas Law Review 95, 153-243 (2016).
[8] See the cases of Prakash Mani Sharma v Office of the Prime Minister (Writ N. 064-WS-0230 of year 2060) decided in 2066 BS (2009) on uterus prolapse defining the wide scope of sexual and reproductive rights; and Lakshmi Dhikta v Office of the Prime Minister 2067, 52(9) NKP 1551 (2010) on the duty of the state to provide free terminations of pregnancy, going as far to state that Nepali law does not recognize a right to life for the foetus.
[9] KS Puttaswamy v Union of India (2017) 10 SCC1. See: Shreya Atrey and Gautam Bhatia “India” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality, and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).
[10] M. Malagodi “Intersectional Inequalities and Reproductive Rights: An India-Nepal Comparison” University of Oxford Human Rights Hub Journal, 3:2, 195-201 (2020).
[11] Daryl WJ Yang and Jaclyn Neo “Gender Equality in Singapore: Wither the Constitution?” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality, and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).
[12] Constitutional Court of Korea, 2017Hun-Ba127 (11 April 2019). See: Yoon Jin Shin “Gender Equality, Individual Empowerment, and Constitutional Rights Review: South Korea’s Dynamic Development” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality, and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).
[13] Imbong v Ochoa, GR No 204819, 732 Phil 1 (8 April 2014). See: Bryan Dennis G. “Gender, Sexuality, and Constitutionalism in the Philippines” in W. Chang, K. Loper, M. Malagodi, and R. Rubio Marín (eds.) Gender, Sexuality, and Constitutionalism in Asia (Hart Publishing, forthcoming 2022).
[14] The project #DesignTheLawNepal is a collaboration between CUHK LAW, the City Law School (London), and iProbono aimed at creating a space for all Nepali citizens to understand their sexual and reproductive rights by harnessing the visual power of legal design. All the artwork is by illustrator and comic artist Kripa Joshi.
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