This is the second 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 contact Melina Girardi Fachin via email at melinafachin@gmail.com.
—Melina Girardi Fachin, Professor of Constitutional Law, Federal University of Paraná – UFPR/Brazil
In recent years, the discourse surrounding constitutional law has been significantly enriched by the incorporation of feminist perspectives, particularly through the lens of feminist multilevel constitutionalism. This approach, which goes beyond traditional boundaries, offers a fresh and open view on advancing women’s rights globally, addressing the pervasive and systemic barriers that women face. As we delve into the concept of feminist multilevel constitutionalism, we’ll explore its impact on constitutional debates and how it redefines equality and non-discrimination, emphasizing the importance of recognizing diversity and individual identities.
Feminist multilevel constitutionalism is not merely a theoretical concept; it is also a practical framework that has been instrumental in fostering gender equality and promoting women’s human rights. This approach is characterized by its transversal, integrated, and comparative dimensions, which allow for a comprehensive examination of constitutional experiences across different societies. Through this lens, the structural oppression and discrimination against women, which are deeply embedded in various cultures and legal systems, are brought into the light. By challenging traditional interpretations of equality and non-discrimination, feminist multilevel constitutionalism advocates for a more inclusive understanding of these principles, one that values and protects diversity.
The impact of feminist multilevel constitutionalism is evident in the way it has shaped international and regional legal frameworks. The inter-American system has been pivotal in advancing the protection of women’s human rights. International agreements and regional conventions have recognized women’s rights as human rights, marking significant strides towards gender equality. This international collaboration highlights the interconnectedness of constitutional systems and underscores the importance of sharing best practices and legal precedents to tackle gender-based oppression.
In terms of women’s human rights, at least from the Brazilian constitutional experience, the integration of several elements of international law were and are essential to account for their protection, especially with the vulnerabilities that add up to the pandemic scenario. Thus, the Constitutions, the CEDAW Convention, and the Belem do Pará Convention, along with the authorized interpretations of each of these specific bodies and committees, add to the protection of women’s rights. That is why feminist constitutionalism is, or at least should be, multilevel.
This does not mean that there is a constitutional universality around our region or, even more, globally: women discrimination is plural and dissimilar because women are also! Despite of that dialogues and exchanges between multiple levels of constitutional experiences allow to demonstrate the structural character of oppression and give a broader perspective that can be blurred at the local level, shedding light, through comparisons on the different roles that the constitution plays in relation to gender justice.
Similar problems and answers emerge from connected realities. On this basis, feminist multilevel constitutional law flourishes, characterized by constitutional exchanges, dialogues between Courts and argumentative exchanges to generate a transformative and expansive impact of the protection of women’s rights on the national and international scene.
As to the foundations of constitutional theory, the diversity focus is one of the most notable aspects of a feminist approach to constitutionalism. Difference is claimed here in its plural sense: inequalities and oppression experienced by women are not limited to a binary code of man/woman, but also embraces race, culture, and social class categories. Feminist constitutionalism is not meant to be inclusive of all aspects of diversity, but it contains an epistemological key that connects them with constitutionalism. Feminist constitutionalism triggers the expansion of constitutional discourse (hence multilevel) and reinstates difference and otherness as its foundations.
This approach challenges the notion of a one-size-fits-all solution to gender inequality, advocating instead for the constitutional protection of diverse identities. By celebrating the plurality of human experiences and striving for both emancipation and egalitarianism, feminist multilevel constitutionalism holds the potential to dismantle systemic barriers and discrimination against vulnerable people, especially women.
The transformative power of feminist multilevel constitutionalism lies in the interconnectedness of legal systems and the global nature of the challenges faced by women. This paradigm shifts the focus from merely achieving formal equality to fostering a more just and equitable society where women’s unique identities are recognized, and their rights are fully protected. In this way, feminist multilevel constitutionalism paves the way for transformative change, advocating for a future where women are empowered, as agents, to shape their destinies in a diverse and inclusive society.
The contribution of feminist multilevel constitutionalism to constitutional debates cannot be overstated. It offers a path forward in a world increasingly conscious of both gender disparities and the need for more inclusive legal frameworks. By integrating feminist multilevel perspectives into constitutional law, this approach not only advances women’s rights but also enriches a broader conception on human rights and equality.
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