Gender and the Law Blog

Book The Cambridge Companion to Gender and the Law Asks To What Extent is the Legal Subject Gendered

Stéphanie Hennette Vauchez & Ruth Rubio-Marín, eds.,  The Cambridge Companion to Gender and the Law  (Cambridge U. Press 2023)

To what extent is the legal subject gendered? Using illustrative examples from a range of jurisdictions and thematically organised chapters, this volume offers a comprehensive consideration of this question. With a systematic, accessible approach, it argues that law and gender work to co-produce the legal subject. Cumulatively, the volume's chapters provide a systematic evaluation of the key facets of the legal subject: the corporeal, the functional and the communal. Exploring aspects of the legal subject from the ways in which it is sexed and sexualised to its national and familial dimensions, this volume develops a complete account of the various processes through which legal orders produce gendered subjects. Across its chapters, each theoretically ambitious in its own right, this volume outlines how the law not only acts on the social world, but genders it.

Center for Reproductive Rights publishes report on "Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine"

The Center for Reproductive Rights published a report on "Care in Crisis: Failures to guarantee the sexual and reproductive health and rights of refugees from Ukraine in Hungary, Poland, Romania, and Slovakia."  The report chronicles how millions of people, mostly women and children, have migrated from Ukraine to the EU, including Hungary, Poland, Romania and Slovakia. 

However, Hungary, Poland, Romania and Slovakia are some of the most challenging contexts in Europe when it comes to sexual and reproductive healthcare and gender-based violence support services. Decades long failures by national governments to invest in and prioritize these forms of care and support, combined with restrictive and unclear legal and policy frameworks and ongoing stigma and rollbacks on sexual and reproductive rights, heavily constrain access to good quality care.

 

As millions of women and girls from Ukraine arrived in Hungary, Poland, Romania and Slovakia, serious concerns arose regarding their ability to obtain essential forms of healthcare, services and support. It became clear that violations of fundamental rights within Ukraine were being compounded by rights violations outside of the country. There was particular concern for refugees who had suffered conflict related sexual and gender-based violence in Ukraine, including rape and other gender-based crimes.

 

Between July 2022 and April 2023, our organizations undertook in-depth, multi-country fact-finding to examine the gaps and barriers in access to sexual and reproductive healthcare and gender-based violence support services that are faced by refugees from Ukraine in Hungary, Poland, Romania and Slovakia. Over nine months, we collected information from semi-structured interviews with over 80 experts, professional stakeholders and refugees from Ukraine based across these four countries.

The article describes the legal barriers, cost barriers, and information barriers, as well as the poor quality care, stigma, and discrimination that these refugees faced in each country. The report offers concrete recommendations to each of the countries.

Understanding Gender Through an Economic Frame and the Lens of Decertification of Legal Sex

Davina Cooper, De-producing Gender: The Politics of Sex, Decertification and the Figure of Economy,  
Forthcoming, Feminist Theory, https://journals.sagepub.com/doi/10.1177/14647001221148639

This article explores the contribution that the figure of economy can make to understanding gender in contemporary Britain, focusing on gender as a social quality and legal category that is produced, allocated and used. The article proceeds in two parts. The first part considers the politics of sex-based feminism and gender-as-diversity through an economic frame. The second part focuses, in detail, on one specific juncture where these diverging politics meet: decertification – a law reform proposal to dismantle the system for assigning, registering and regulating legal sex. Decertification is a controversial strategy. Advocates argue that self-expression and interpersonal communication, whether through gender or against it, is hindered by a state-based disciplinary certification system. Critics disagree. They argue that dismantling legal communication about a person's sex makes it harder to put categories of female and woman to remedial use. Drawing on other uses of certification, including commercial ones, this article suggests that certification not only communicates information about a process, quality or thing; it also contributes to their production. The impact of decertification on how gender is produced, what gets produced as gender and the uses to which gender is put are central to determining whether decertification is beneficial to a progressive transformative gender politics.

Gendered Barriers to Access for Legal Aid Programs in Canada

Gillian Petit & Lindsay Tedds, Systematic Barriers to Justice: Financial Eligibility for Legal Aid- A Gendered Analysis 

Provinces and territories across Canada offer legal aid programs to facilitate access to justice for those who are economically disadvantaged. While requirements differ by province/territory, eligibility for legal aid is dependent on having a case of merit and having income and assets below a certain threshold. In this paper, we focus on income thresholds for legal aid, and empirically measure their impact on gendered access to family legal aid. We find that legal aid income thresholds pose a higher access barrier to single women living in MBM poverty in BC, Alberta, and Ontario compared to single men living in MBM poverty, families with children living in MBM poverty, and residents of Quebec. We show this is due to different distributions of income and the placement of the legal aid income threshold. This analysis is an example of how GBA+ should be applied to examine systematic barriers to program access.

Pizzarossa et al., on "Self-Managed Abortion in Africa"

Scholars Lucía Berro Pizzarossa, Michelle Maziwisa, and Ebenezer Durojaye have published "Self-Managed Abortion in Africa: The Decriminalization Imperative in Regional Human Rights Standards, in the Health and Human Rights Journal (May 2023). The abstract provides:   

Self-managed abortion holds particular promise for revolutionizing people’s access to quality reproductive care in Africa, where the burden of abortion-related mortality is the highest globally and where abortion remains criminalized, in violation of various internationally and regionally recognized human rights. Increasingly safe and effective, self-managed medication abortion is still subject to many restrictions, including criminal laws, across the continent. Drawing on recent evidence and human rights developments around self-managed abortion, this paper explores whether and to what extent Africa’s regional legal framework builds a normative basis for the decriminalization of self-managed abortion. We conclude that the region’s articulation of the rights to dignity, to freedom from cruel, inhuman, and degrading treatment, and to nondiscrimination, among others, provides strong grounds for decriminalization, both concerning individuals who need abortions and concerning the constellation of actors who enable self-management.

Introduction to Frontiers of Gender Equality--Transnational Legal Perspectives

Rebecca J. Cook, Introduction, "Many Paths to Gender Equality," in Frontiers of Gender Equality: Transnational Legal Perspectives (Rebecca J. Cook, ed. University of Pennsylvania Press, 2023)

In this Introduction to the book Frontiers of Gender Equality: Transnational Legal Perspectives (2023), editor Rebecca Cook shows how a chorus of voices introduces new and different discourses about the wrongs of gender discrimination and explains the multiple dimensions of gender equality. This volume demonstrates that the wrongs of discrimination can best be understood from the perspective of the discriminated, and that gender discrimination persists and grows in new and different contexts, widening the gap between the principle of gender equality and its realization, particularly for subgroups of women and LGBTQ+ peoples.

Frontiers of Gender Equality provides retrospective views of the struggles to eliminate gender discrimination in national courts and international human rights treaties. Focusing on gender equality enables comparisons and contrasts among these regimes to better understand how they reinforce gender equality norms. Different regional and international treaties are examined, those in the forefront of advancing gender equality, those that are promising but little known, and those whose focus includes economic, social, and cultural rights, to explore why some struggles were successful and others less so. The book illustrates how gender discrimination continues to be normalized and camouflaged, and how it intersects with other axes of subordination, such as indigeneity, religion, and poverty, to create new forms of intersectional discrimination.

With the benefit of hindsight, the book’s contributors reconstruct gender equalities in concrete situations. Given the increasingly porous exchanges between domestic and international law, various national, regional, and international decisions and texts are examined to determine how better to breathe life into equality from the perspectives, for instance, of Indigenous and Muslim women, those who were violated sexually and physically, and those needing access to necessary health care, including abortion. The conclusion suggests areas of future research, including how to translate the concept of intersectionality into normative and institutional settings, which will assist in promoting the goals of gender equality.

New Book, Gender Dynamics and Feminist Perspectives on Transboundary Water Conflict and Cooperation

Jenniver Sehring, Rozemarijn ter Horst, Margreet Zwarteveen    eds., Gender Dynamics in Transboundary Water Governance: Feminist Perspectives on Water Conflict and Cooperation (Routledge 2023)

This volume assesses the nexus of gender and transboundary water governance, containing empirical case studies, discourse analyses, practitioners’ accounts, and theoretical reflections.

Transboundary water governance exists at the intersection of two highly masculinised fields: diplomacy and water resources management. In both fields, positions are mainly held by men, and core ideas, norms, and guiding principles that are presented as neutral, are both shaped by men and based on male experiences. This book sheds light on the often hidden gender dynamics of water conflict and cooperation at the transboundary level and on the implicit assumptions that guide research and policies. The individual chapters of the book, based on case studies from around the world, reveal the gendered nature of water diplomacy, take stock of the number of women involved in organisations that govern shared waters, and analyse programmes that have been set up to promote women in water diplomacy and the obstacles that they face. They explore and contest leading narratives and knowledge that have been shaped mainly by privileged men, and assess how the participation of women concretely impacts the practices, routines, and processes of water negotiations.

Evaluating the New EU Directive on Combating Image-Based Sexual Abuse

Carlotta Rigotti & Clare McGlynn, Towards an EU Criminal Law on Violence Against Women: The Ambitions and Limitations of the Commission’s Proposal to Criminalise Image-Based Sexual Abuse,New Journal of European Criminal Law IJECL 2022, Vol. 0(0), 1-26

In March 2022, the European Commission proposed a new landmark Directive on combating violence against women and domestic violence which includes measures on the non-consensual distribution of intimate and manipulated images. We refer to this form of violence against women as ‘image-based sexual abuse’, a term that encompasses all forms of the non-consensual creating, taking or sharing of intimate images or videos, including threats to share such material and altered material. In this article, we provide a new analysis of current Member State laws covering all forms of image-based sexual abuse, as well as the first detailed examination of the Commission’s proposals to tackle this form of violence against women. We suggest that the Commission’s proposal is characterised by both its ambition and limitations. It is ambitious in its attempts to set minimum rules in challenging areas of criminal law and, in doing so, recognises the serious harms of image-based sexual abuse. At the same time, by seeking to expand the reach of EU criminal law, inevitably requiring compromise, the scope of the proposed measures is somewhat limited. Such compromises and limitations risk entrenching hierarchies between different forms of abuse and, ultimately, the proposal fails to provide a comprehensive response reflective of victims’ experiences

The New Colombian Law on Abortion Allowing Interruption Until Week 24 Based on the Right to Health, Substantive Equality, and Freedom of Conscience

Isabel Cristina Jaramillo Sierra, The New Colombian Law on Abortion, International Journal of Gynecology and Obstetrics 159.3 (Jan. 2023): 345-350

On February 21, 2022, the Colombian Constitutional Court decided that the existing regulation of abortion was unconstitutional and repealed it (Sentencia C-055/2022). The new abortion law, as per the Court’s decision, considers the voluntary interruption of a pregnancy a crime only when it happens after week twenty-four and does not fall under the health, rape or malformation indications developed through precedent from 2006 to 2022. The decision is generally binding and of immediate application. The decision’s rationale builds on the right to health, substantive equality, and freedom of conscience. It acknowledges severe restrictions in access to abortion faced by Colombian women and the costs these restrictions have on their lives. It also recognizes that the indications model forces women to obtain permission from medical doctors to access abortion, and thus fails to recognize women’s freedom of conscience.

Exploring the Formal and Informal Definitions of Sex and Gender and the British Proposals to Reform How the Categories are Used in Law

Davina Cooper, What Does Gender Equality Need? Revisiting the Formal and Informal in Feminist Legal Politics,  Journal of Law and Society 2022, 49 (4) 800-823

This article explores the political conflict over reforming how sex and gender categories are used in British law, focusing on the speculative legal proposal to ‘decertify’ sex and gender. Three interconnected arguments are advanced. First, diverging views on decertification are both about and seek to marshal competing perspectives on the value and risks of formalization and its undoing. Second, understanding these views, and decertification more generally, benefits from an account of the formal and informal as interconnected movements of (un)settling, (un)acknowledgement, system (un)intelligibility, and (non-)deference which remains irreducible to the presence or absence of state and law. Third, while formalization can pin down responsibilities and entitlements, it can also fix unequal and exclusionary status relationships. Focusing on positive action in the final part of the article, I consider how movements of formalization and informalization interrelate and the choices available, in conditions of decertification, if positive action is to counter gender inequality.

International Conference on Family Planning Session Recordings Available

The International Conference on Family Planning was held in Thailand in November 2022. Conference tracks included content related to universal health care coverage, gender equality, reproductive rights, quality of care, contraceptive technology, reproductive health among youth, reproductive health in humanitarian settings, and the impact of COVID-19 on reproductive health. 

Use this spreadsheet to search for sessions presenting research and advocacy that supports your work! 

Phil Lord on "Trumping Dobbs"

Phil Lord has published Trumping Dobbs in the University of Illinois Law Review Online (2023). The abstract previews: 

This Essay draws upon Canadian constitutional law to analyze the Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization. In his Foreword to the 2018 Harvard Law Review Supreme Court issue, Jamal Greene analogously draws upon Canadian constitutional law to illuminate aspects of U.S. constitutional law we often oversee and take for granted. He argues that rights are construed as “trumps”: they are absolute. Greene contrasts this framework to Canada’s, under which rights are subject to reasonable limitations pursuant to a “proportionality analysis.” This Essay builds upon that work. It argues that proportionality analysis is indeed central to constitutional adjudication in Canada and most other developed countries. The Essay shows how the framework for the protection of reproductive rights set out in Roe v. Wade and modified in Planned Parenthood v. Casey incorporates key aspects of proportionality analysis. It allows for varying limitations to a constitutional right. Because these precedents significantly moved away from the existing framework of constitutional review, and did not acknowledge that they sought to fundamentally change that framework, they were uniquely vulnerable. Unsurprisingly, the Dobbs majority sharply criticizes the balancing of values and goals that defines proportionality analysis as impracticable and inconsistent with U.S. constitutional review. More broadly, these precedents, and the Dobbs opinion, illustrate how U.S. constitutional law lacks the necessary tools to mediate and reconcile conflicting rights – unlike countries which adopt proportionality analysis. Its rigid framework, which many Americans tightly hold on to as a hallmark of democracy and judicial minimalism, amplifies the role of courts in fundamental, charged sociopolitical debates. It is inherently bound to politicize the intervention of courts and undermine their legitimacy.

France Moves to Put Abortion Rights in Constitution

Wash Post, France Moves to Put Abortion Rights in Constitution and US Curbs Access

Months after the U.S. Supreme Court overturned Roe v. Wade, France is moving toward enshrining abortion rights in its constitution.

French President Emmanuel Macron said this would send “a universal message of solidarity to all women who today see this right violated.”***

In France, Macron said he hoped a bill on the constitutional revision would be submitted to Parliament “in the coming months.”

The president made the announcement on International Women’s Day at an event honoring Tunisian-born French lawyer Gisèle Halimi, a defender of abortion rights who was central to its legalization in France and died in 2020 at 93.

The constitutional amendment’s final adoption is probably still months away. Both houses of the French Parliament have in recent months voted in favor of enshrining protections in the constitution, despite differing on the terminology between calling it a “freedom” or a “right” to abortion. And if Macron’s proposal fails, French voters may have to decide in a nationwide referendum.

Urgent Appeal and Call to Action Sent to U.N. Explaining how U.S. Anti-Abortion Legislation Violates International Law

A coalition of groups, including Human Rights Watch, Pregnancy Justice, the National Birth Equity Collaborative, Physicians for Human Rights, Amnesty International, and the Global Justice Center, have authored a letter to United Nations mandate holders. The letter issues an urgent appeal and call to action: 

By overturning the established constitutional protection for access to abortion and through the passage of state laws, the US is in violation of its obligations under international human rights law, codified in a number of human rights treaties to which it is a party or a signatory. These human rights obligations include, but are not limited to, the rights to: life; health; privacy; liberty and security of person; to be free from torture and other cruel, inhuman, or degrading treatment or punishment; freedom of thought, conscience, and religion or belief; equality and non-discrimination; and to seek, receive, and impart information.

 

The signatories call on the UN mandate holders to take up their calls to action, which include communicating with the US regarding the human rights violations, requesting a visit to the US, convening a virtual stakeholder meeting with US civil society, calls for the US to comply with its obligations under international law, and calls for private companies to take a number of actions to protect reproductive rights.

The full 53-page appeal is available here. It outlines all of the ways that women's health and lives are threatened by the Dobbs decision. The letter is signed by dozens of organizations and individuals. It is a great, comprehensive resource for advocates. 

Ireland Announces Referendum for Constitutional Amendment for Gender Equality

Taoiseach and Minister O’Gorman announce holding of referendum on gender equality

The Taoiseach said:

For too long, women and girls have carried a disproportionate share of caring responsibilities, been discriminated against at home and in the workplace, objectified or lived in fear of domestic or gender-based violence.

"I am pleased to announce that the government plans to hold a Referendum this November to amend our Constitution to enshrine gender equality and to remove the outmoded reference to ‘women in the home’, in line with the recommendations of the Citizens Assembly on Gender Equality.

h/t Prof. Julie Suk

International Center for Research on Women Publishes Feminist Foreign Policy Index

The International Center for Research on Women (ICRW) has published a Feminist Foreign Policy Index. Published by Foteini Papagioti, the Index is "a new tool developed to assess countries’ progress toward a feminist foreign policy (FFP)." It is intended as a guidance tool for policy makers "to facilitate comparison and knowledge sharing.":

This Index lays out an expansive vision for FFP that addresses some of the structural drivers of gender inequality. It evaluates commitments to global peace and security; official development assistance for gender equality; migration for employment; labor protections; economic justice; political representation and institutional frameworks; and a gender-just climate response. It is premised on the idea that, together, the priority areas outlined here can lead to transformative change at the multilateral and domestic level with knock-on effects for the other priority areas in the Index.

Click here to access the Feminist Foreign Policy Index tool.

The ICRW makes several recommendations after its publication of this tool. Here are a few of the recommendation related to law:  

A significant investment in peace and human security, reducing the diversion of financial resources to militarization and arms proliferation and strengthening the ratification and implementation of foundational disarmament treaties and protocols.

* * *

A rights-based approach to migration, both tackling its underlying structural causes and identifying gender-sensitive policies and approaches to facilitate safe and orderly migration. These include strengthening the participation and leadership of migrant women, repealing discriminatory laws and restrictions on migration, strengthening legal protections and access to remedies and adopting non-discriminatory family reunification schemes and residency regulations.

The ratification of fundamental labor standards, with a special focus on ILO Convention 190 on violence and harassment in the world of work, and, more broadly, an interrogation of current economic, trade and labor practices that may be contributing to inequalities, including gender inequality, in global value chains. 

* * *

Ratification of CEDAW and increasing women’s meaningful representation at all levels of decision-making and leadership in all of the priority areas outlined in this Index.

 

UN Chief Warns Gender Equality is 300 Years Away

Wash Post, "Gender Equality is 300 Years Away", UN Chief Warns

Decades of advances on women’s rights are being wound back and the world is now hundreds of years away from achieving gender equality, according to the United Nations.

Speaking to the U.N. Commission on the Status of Women on Monday, ahead of International Women’s Day on Wednesday, Secretary General António Guterres said gender equality is “vanishing before our eyes.”

He drew special attention to Afghanistan, where Guterres said women and girls “have been erased from public life” following the return to Taliban rule. The regime has barred women and girls from universities and some schools. The Taliban has also blocked many female aid workers, imperiling key aid programs, including those overseen by the U.N.

In many places, women’s sexual and reproductive rights “are being rolled back,” he said. *** Maternal mortality is on the rise, he said, and the coronavirus pandemic has forced millions of girls out of school, and mothers and caregivers out of the global workforce.***

 

The U.N. chief also said gender equality is at risk from a technology industry heavily skewed toward a male workforce. Men outnumber women by 2 to 1 in the tech industry, and in the growing field of artificial intelligence, that gender gap rises to 5 to 1, according to Guterres, putting the world-changing industry at risk of “shaping our future” in a gender-biased way.

Guterres also trained a spotlight on the “misogynistic disinformation and misinformation” he said was flourishing on social media, and what is known as gender trolling aimed at “silencing women and forcing them out of public life.”

The Future of Equal Pay in Sports

Suman Dash Bhattamishra & Rangin Tripathy, The Future of Equal Pay in Sports, 7(1) COMP. CONST. L. & ADMIN. L. J. [1] (2022)

Over the last decade, there has been a steady and unmistakable rise in the popularity of women’s sports and female athletes in general. Most of the viewership records for major women’s sporting events have been set in the last decade. With increased attention to women’s sports, there has also been heightened scrutiny on the pay gap which exists between men and women playing the same sport. While in some selected sporting competitions, such as the All-England Tennis Championships (Wimbledon), women and men are now paid equal amounts of prize money, there still exists a significant difference in the financial incentives which are afforded to men and women. This paper looks at the feasibility of ensuring equal pay through the judicial process. We argue that a judicial route would involve greater hazards in the pursuit of equal pay, and instead, the pressure of public opinion and consequential changes in policy formulation by the administrators presents a better opportunity of mitigating the pay gap which exists between men and women. We further argue that even if judicial decisions favour the cause of equal pay, in the current climate, political mobilization offers a more enduring solution than judicial intervention.

The European Court of Human Rights' Decisions Attaching Increasing Importance to Paternal Care and Substantive Gender Equality

Alice Margaria, Another Side of Gender Equality: Fatherhood in the ECtHR Jurisprudence,  
I. Motoc, I. Jelic, S. Suteu and E. Brodeala (eds), Women's Human Rights in the Twenty-First Century: Developments and Challenges under International and European Law (Forthcoming)

This paper sheds light on a central, yet rarely discussed, contribution of the European Court of Human Rights to advancing women's rights and substantive gender equality: that is the increased importance attached to paternal care in its jurisprudence pertaining to fatherhood under Article 8 alone and in conjunction with Article 14. It is argued that this case-law gives us plenty of signs that the Court is taking some promising step towards creating a right to substantive gender equality. In particular, what appears to be the most promising is not – or at least not just – the extension of legal protection to a wider range of ‘unconventional’ fathers, but the way in which this extension has materialised: namely, by acknowledging the central value of care thus advancing, rather than overshadowing, women’s quest for equality. That being said, the same case-law poses also some limitations and risks from a substantive gender equality perspective. Firstly, paternal care is attached different meanings, ranging from actual caregiving to mere caring potential, entailing the risk of 'sentimentalising' care and fatherhood. Secondly, paternal care tends to be given ‘only’ conditional importance: expressions of paternal care are generally taken into consideration if expressed in an otherwise conventional context (eg, genetics, marriage, heteronormativity), rather than being decisive on its own. This assimilationist logic has, in turn, translated into a lower level of protection accorded to same-sex and trans fathers, thus calling for some critical reflections and (more) cautious interpretation of the Court’s reconstruction of fatherhood.

A Look at the Comprehensive Legislation in the EU for Gender Pay Inequity and its Likely Impact in Ireland

Sara Benedi Lahuerta, EU Transparency Legislation to Address Gender Pay Inequity: What is on the Horizon and its Likely Impact in Ireland, Irish Journal of European Law (2022) Vol. 24, pp. 161-188.

After years of scarce legislative developments, EU equality law seems to be gaining momentum, at least in the field of gender equality. Following the adoption of the Work-Life Balance Directive in 2019, in March 2021 the European Commission adopted a proposal for a Directive to strengthen the application of the principle of equal pay through pay transparency. Additionally, after a decade of discussion, a political agreement was finally reached in June 2022 to adopt the “Women on Boards” Directive. Given the complex causes of gender inequality – including gender pay inequity – such a combination of measures may bring about a powerful toolbox to make progress in the right direction. This article only focuses on one of them: the Proposed Directive on pay transparency, which contains a reasonably comprehensive set of substantive and enforcement measures. In particular, it discusses the potential and limitations of the Proposed Directive’s key substantive measures, while also giving consideration to the impact that this instrument might have in Ireland.