Gender and the Law Blog

Exploring the Tension Between Culture or Religious Practice and Gender Equality

Rangita de Silva De Alwis, Customs, Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality 

The tension between culture or religious practice and gender equality is a globally pervasive challenge in human rights practice. The human rights of women and the right to culture are sometimes in opposition while at the same time, the binary distinction between women’s human rights and the right to culture are also contested. In this paper, I examine how constitutions and courts have negotiated the balance through the interpretation of women’s rights.

The goal of this paper is not to examine the exegesis of religious texts or the hermeneutics of canonical arguments which are subjects of plural interpretation, or the burgeoning social movements that are active in claiming a dynamic interpretation of religion and cultural practice. Rather it is to analyze how constitutions and national courts frame the human rights of women in light of culture, and customary traditions. The paper maps the religious and free speech clauses of each national constitution and a compendium of case law from national courts in relation to the judicial interpretation of culture, customary laws, and religion pertaining to questions on women’s rights and gender equality. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights in situations when rights may compete and gender equality hangs in the balance.

A Feminist Approach to Competition Law and Policy

Kati Cseres, Feminist Competition Law, Cambridge Handbook on the Theoretical Foundations of Antitrust and Competition Law (Cambridge University Press, forthcoming 2024)

This paper takes up the challenge to show what a feminist approach to competition law and policy is, and what its contribution can be to the scholarship of competition law.

Despite increasing attention from academics and policy makers concerning the intersection of gender equality and competition law, most debates and discussions add gender to the analytical framework, economic calculation or survey, but fail to investigate the gender divisions that deeply bifurcate the structure of modern society, including legal rules, formal and informal institutions and enforcement practices. The implications of gendered lives, experiences and social realities on people’s preferences, choices and decisions in markets remain outside of such discussions. Therefore, feminist methodology and feminist social science research on gendered social realities remains a blind spot in current debates and discussions.

Remarkably, a similar blind spot exists in the diverse strands of feminist social science research, notably feminist legal and economic scholarship that has already been applied to various legal fields, but have engaged less thoroughly with the legal frameworks of market processes. Therefore, competition law has been a blind spot in these investigations so far.

By focusing on the central role of gender and women’s experiences, feminists take a contextualized lens and draw attention to the complexity of the economy, economic activities and the embeddedness of markets in broader social, economic and political contexts. Their analysis is multidimensional and pluralist, with a strong focus on human diversity and intersectionality. Feminist approaches go beyond merely adding gender to the analysis and investigate the deeper layers of legal rules, economic models and enforcement practices that entrench gendered power structures, dynamics, institutional arrangements and produce and reproduce various forms of inequalities.

From the richness of feminist methodologies, I draw on feminist legal theory, feminist (institutional) economics and feminist political economy to demonstrate how feminist approaches probe the alleged ‘neutrality’ and objectivity of competition law and to unpack the gendered nature (and impact) of its underlying legal rules, concepts and enforcement practices. I explore various assumptions embedded in existing competition rules and concepts, show which gender-based consequences the application of these rules and concepts may have and how policy makers and enforcers could implement gender into the substantive analysis of specific cases as well as into the procedures and institutional arrangements in the enforcement of competition law.

I argue that feminists’ analytical lens is, in fact, intimately related to the analytical lens of competition law. The focus of their analysis concern power structures and dynamics, investigate how various social and economic actors are impacted through these power inequalities and strive to control excessive power and change existing social, economic and political structures. However, the site and scope of their analysis differs. Competition law is concerned with market processes, structures and activities, while feminists repeatedly and forcefully called attention to those activities, processes and arrangements that lie outside of the market and the economy.

Kenya Court Affirmed the Right to Respectful Maternal Care

The Center for Reproductive Rights reports on a victory in Kenya's Court of Appeals. The facts of the case are excerpted from the opinion here: 

a. She was admitted to the hospital – and the hospital was overstretched to the extent that she had to share a bed with another patient;

b. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge;

c. She gave birth on the floor, in the corridor of the hospital, and without assistance;

d. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor;

e. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation;

f. She was not informed of the process she could use to file any grievance she had. 

The court held: 

28.The inevitable conclusion is that, upon an independent review of the evidence presented to the trial court, Josephine sufficiently proved her factual claims. The question that follows this conclusion is whether the facts, as proved, demonstrated constitutional violations to entitle her to the declarations the court made in her favour and against the appellants.

 

29.It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.

Reform of Sexual Harassment Laws in Australia

Belinda Smith, Respect@Work Amendments: A Positive Reframing of Australia’s Sexual Harassment Laws,  
(2023) 36 Australian Journal of Labour Law 145

Australian law on sexual harassment has seen many changes in the past few years. This article outlines and analyses these changes in light of the findings of the inquiry that recommended them, Respect@Work: National Inquiry into Sexual Harassment in Australian Workplaces. The Report found that sexual harassment was pervasive, harmful and clearly not being addressed by the existing laws, which relied almost entirely on individual victims to lodge formal complaints and bear the burden of driving change. The legislative amendments serve to harmonise and improve individual protections across the Sex Discrimination Act 1984 (Cth), Fair Work Act 2009 (Cth) and work health and safety laws. The most significant change, though, is the introduction of a new duty on persons conducting a business or undertaking to take positive steps to prevent harassment and sex discrimination. While its deficiencies are acknowledged, this duty could play an important functional and symbolic role in shifting regulatory attention from victims to their employers and other duty holders, and more importantly, from redressing harm after the fact to preventing it in the first place.

Feminist Judgments: Immigration Opinions Rewritten

Kathleen Kim, Kevin Lapp & Jennifer Lee, Feminist Judgments: Immigration Opinions Rewritten (Introduction),  
Feminist Judgments: Immigration Law Opinions Rewritten , pp. 1 - 14, Cambridge University Press, 2023

This volume, part of the Feminist Judgment Series, shows how feminist legal theory along with critical race theory and intersectional modes of critique might transform immigration law. Here, a diverse collection of scholars and lawyers bring critical feminist, race, and intersectional insights to Supreme Court opinions. Feminist reason values the perspectives of outsiders, exposes the deep-rooted bias in the legal opinions of courts, and illuminates the effects of ostensibly neutral policies that create and maintain oppression and hierarchy. One by one, the chapters reimagine the norms that drive immigration policies and practices. In place of discrimination and subordination, the authors demand welcome and equality. Where current law omits the voice and stories of noncitizens, the authors center their lives and experiences. Collectively, they reveal how a feminist vision of immigration law could center a commitment to equality and justice and foster a country where diverse newcomers readily flourish with dignity.

The Critical Mass Theory of Women in Leadership as a New Model of Empowerment

Rangita de Silva de Alwis, The Critical Mass Theory of Women in Leadership: What Next?" 

This paper looks at how at the national level, a shift from a primarily equal opportunity model to equal empowerment model creates a new shift in women’s leadership paradigm. This paper posits that the new General Recommendation 40 of the Convention on the Elimination of Discrimination against Women (CEDAW) brings us close to full gender parity in leadership in public and private as the next generation model on gender equality. Further, this Article analyzes critical mass theory, namely how a representative critical mass in the political, business, and public leadership spheres can lead to critical acts, furthering representation for women on the legislative arena. This reveals a move from descriptive to substantive representation of women in public life. Although critical mass is not the same as gender parity, it can lead towards parity and equality. When the number of women in a given field reaches a critical mass, it helps to shrink tokenism, and marginalization and elevates the role model effect of women’s leadership. In the final analysis, the paper argues that 25 years after the Beijing Platform of Action established the 30 percent critical mass for women’s leadership, full gender equality in leadership is the unfinished business of our time.

The CEDAW Concluding Observation 40 is built on the human rights framework of CEDAW's Article 4 on substantive equality that helps accelerate women’s participation in decision-making and addresses a historic legacy of gender discrimination. Premised on the model of equality of result, “Temporary Special Measures” as enshrined in Article 4 of the CEDAW move away from a formal sex equality model which treats women and men as similarly situated. Despite its intentions, the formal equality model often does not produce equal results. The effects of such a legacy of discrimination are manifest in the numerous gender stereotypes that subordinate women. It is therefore necessary that gender equality paradigms go further than gender neutrality concepts that reinforce structural barriers to women’s equality. A second model, the substantive equality model, takes a different stance in attempting to remedy the effects of past discrimination by demanding that policies and laws take into account such gender differences in order to avoid unequal results. Examples of the substantive equality model include CEDAW’s Temporary Special Measures for women which are often designed to boost women’s participation in historically male dominated fields. Toward the advancement of CEDAW’s goal of equality in decision making, General Recommendation 40 of the CEDAW, underscores what was argued by David Rothkopf former, editor of Foreign Policy, that “the underrepresentation of women in positions of power is proof not so much that men still dominate the top of the pyramid as it is of a system of the most egregious, widespread, pernicious, destructive pattern of human rights abuses in the history of civilization."

As a coda, while writing this article, in September of 2023, India passed historic legislation, mandating one-third of seats in the lower house and state legislative assemblies for female candidates. As the largest democracy in the world, this is indeed a significant milestone in ongoing efforts to enhance the representation of women in political systems. After 27 years since the Bill was introduced, the passage of the Bill provides momentum to the role of the critical mass theory in women’s leadership.

French President Moves to Enshrine Right to Abortion in Constitution

Macron Moves to Add Abortion to France's Constitution, Reacting to US, Wash. Post

President Emmanuel Macron on Friday submitted language for an amendment that would make France the first country to enshrine a right to abortion in its constitution.

Macron has declared on social media that by next year “the right of women to choose abortion will become irreversible.”

The push comes in direct response to the restriction of abortion rights in the United States.

Abortion in France has not been similarly under threat. The French public overwhelmingly supports abortion rights. Abortion is legal for any reason through the 14th week of pregnancy and fully covered by the country’s health insurance system.

But after the U.S. Supreme Court’s Dobbs ruling that overturned Roe v. Wade last year and allowed states to outlaw abortion, French women clamored to further protect their right.

In many countries, abortion is protected by law, not court decision

“The Dobbs case was very shocking in France,” said Mathilde Philip-Gay, a law professor at Jean Moulin Lyon 3 University. “A movement was born just after the case, and women asked Parliament to act and especially to change the constitution.” She noted that polls in the summer of 2022 showed that about 80 percent of the population supported abortion rights and a similar percentage was in favor of adding a right to abortion to the constitution.

Regulating the Substantive Gender Inequalities of Artificial Intelligence

Rosel Kim & Kristen Thomasen, Submission to The Standing Committee on Industry and Technology on Bill C-27, An Act to enact the Consumer Privacy Protection Act, the Personal Information and Data Protection Tribunal Act and the Artificial Intelligence and Data Act and to make consequential and related amendments to other Acts 

While AI has been touted by industry as an innovative tool that will yield benefits for the public, examining the impact of AI from a substantive equality perspective reveals profound harms. As a leading national organization with a mandate to advance substantive gender equality, LEAF urges the government to centre substantive equality and human rights as the guiding principles when regulating the growing use of AI. With this goal in mind, LEAF submits that the scope of AIDA must - at least - be substantially expanded in order to enable regulations that can protect against all present and emerging harms from AI.

Women in Iceland Go on Strike Against Gender Inequality

NYT, Women in Iceland Go on Strike Against Gender Inequality

Tens of thousands of women and nonbinary people in Iceland were expected to join a one-day strike on Tuesday, which organizers called the country’s largest effort to protest workplace inequality in nearly five decades.

Iceland is a global leader in gender equality but still has a long way to go, said Freyja Steingrímsdóttir, a spokeswoman for the Icelandic Federation of Public Workers, the country’s largest federation of public worker unions.

“Iceland is often viewed as some sort of equality paradise,” Ms. Steingrímsdóttir, an organizer of the strike, said. “If we’re going to live up to that name, we need to move forward and really be the best we can be — and we’re not stopping until full gender equality is reached.”

Organizers urged women and nonbinary people to stop all work on Tuesday, including household errands and child care. Even Prime Minister Katrín Jakobsdóttir said she would take part, telling local news media that she would not call a cabinet meeting and that she expected other women in the cabinet to strike.

Gender Parity and Constitutionalism in Chile

Rosalind Dixon & Marcela Prieto Rudolphy, Parity Constitutionalism, Global Constitutionalism, Forthcoming

"Never again without us", the Chilean feminist movement demanded of the constitution-making process. This demand for remedying women's historical exclusion from constitution-making ultimately translated to gender parity in the composition of the Chilean constitutional assembly. However, the constitutional draft, which included many gender-related norms, was rejected by Chileans in the exit referendum. In this article, we argue that although gender parity in constitution-making has promise and, like in the Chilean case, can be linked to substantive outcomes in terms of gender rights enshrined in the constitutional text, without political representation that is embedded in a broader party structure, those promises may fail to materialize.

Deep Disagreements in the Last Five Years of Equality Jurisprudence at the Supreme Court of Canada

Jennifer Koshan & Jonnette Watson Hamilton, "'Clarifications' or 'Wholesale Revisions'? The Last Five Years of Equality Jurisprudence at the Supreme Court of Canada" (2023) Supreme Court Law Review (Forthcoming)
Presented at the Asper Centre's Litigating Equality Symposium at the University of Toronto in May 2023

Over the past five years, the Supreme Court of Canada’s equality jurisprudence under the Canadian Charter of Rights and Freedoms has revealed deep disagreements within the Court. This paper reviews the six decisions that comprise that jurisprudence, drawing out the major points of contention on the role of substantive equality, the test for section 15(1), adverse effects discrimination, causation, evidence, contextualization, and positive obligations. Our argument is that while the section 15 majorities in the first three decisions – Alliance, Centrale, and Fraser – attempted to respond to the critiques of equality-seeking groups, these decisions could not paper over the profoundly ideological disagreements embedded in equality rights jurisprudence, particularly in cases of systemic discrimination. In light of the recent push-back by a significant proportion of the Court in R v CP and a majority in Sharma, we also discuss the implications of the six decisions for equality-promoting litigation strategies going forward.

Kenyan Court Exonerates Health Care Provider and Mother of Adolescent Girl From Abortion Charges

The Center for Reproductive Rights reported on the dismissal of Republic v. Samson Mwita & Grace Wanjiku on September 25th. The Center for Reproductive Rights summarizes the case: 

The defendants, Samson Mwita and Grace Wanjiku, were arrested and charged in September 2018 when police stormed the health facility where Wanjiku’s 16-year-old daughter was being treated by Mwita for pregnancy related complications following a sexual assault as a minor.

Under the charges of procuring an abortion, Mwita and Wanjiku faced up to 14 years imprisonment under section 158 of Kenya’s Penal Code—but the Court determined that the prosecution presented no evidence to sustain the charges. Following the acquittal by the Chief Magistrates Court, neither Mwita nor Wanjiku can be charged again for the same allegations.

* * *

“After living under the shadow of prosecution for five long years, our clients, Mwita and Wanjiku, have finally received release from unjust charges that have affected every facet of their lives. No mother or health care provider should be treated as a criminal for protecting the rights of an adolescent.”

Kenya’s 2010 Constitution protects abortion as a fundamental right guaranteed when life or health, including mental health, are at risk, and in cases of sexual assault. Despite those protections, Kenya’s Penal Code continues to criminalize abortion, and abortion care remains almost unobtainable in most of the country, especially in rural areas. In addition, women, girls and health care providers continue to face harassment, arrest and prosecution when attempting to access or provide abortion care.

Book Review, Julie Suk, After Misogyny: Lessons from Comparative Constitutionalism

Linda McClain, Care Work, Gender Equality, and Abortion: Lessons from Comparative Constitutionalism, JOTWELL, reviewing Julie Suk, After Misogyny: How the Law Fails Women and What to Do About It.

Julie Suk’s ambitious book, After Misogyny: How the Law Fails Women and What to Do About It, contributes to a feminist literature on equality and care spanning centuries and national boundaries, yet offers timely diagnoses and prescriptions for the United States at a very particular moment. That “moment” includes being four years into the COVID-19 pandemic and over one year into the post-Roe v. Wade and Planned Parenthood v. Casey world wrought by Dobbs v. Jackson Women’s Health Organization. That moment also includes a sense that transformative political and constitutional change are necessary but difficult because (as Suk and Kate Shaw recently noted) Americans have “lost the habit and muscle memory of seeking formal constitutional change” —and because of problems like polarization, gerrymandering, and restrictions on voting. Drawing on her expertise in comparative constitutional law and gender equality, Suk offers “comparative lessons” from feminist lawmaking and constitutionalism elsewhere to help move the U.S. to a democratic constitutionalism that is post-patriarchy and post-misogyny. (Pp. 212-14.) In this review, I explore some of those lessons concerning governmental commitments to supporting care and gender equality and to fostering reproductive justice.

Australian Inquiry Into Accounts of Birth Trauma

CNN covered a recent proceeding hearing personal accounts of birth trauma in Australia in its article, "MeToo" for Mothers: Australian Inquiry Hears Troubling Accounts of Birth Trauma.

The inquiry was called after dozens of women complained about their care in one part of the state, but the deluge of submissions suggests the problem goes far wider.

 

More than 4,000 submissions were received in just six weeks, mostly from mothers who say they were ignored, belittled, and denied the opportunity to give informed consent.

 

Some lost their babies, others carried their infants home along with mental and physical trauma – for which many blame themselves.

The proceeding opened with comments like these: 

“No means no, except apparently in childbirth, and it’s time to change that,” Hannah Dahlen, a professor of midwifery at Western Sydney University, told the inquiry when it opened on Monday. “This is the MeToo movement of birth.”

The committee member who convened the proceeding told CNN: 

Committee Chair Emma Hurst says the point of the inquiry isn’t to lay blame on individuals. “It’s about finding out where the system is failing and making sure we can work towards changing those systems so it doesn’t continue to happen to other women.”  

 

Jessie Allen on "Property and More-Than-Human Personhood"

Jessie Allen has posted on SSRN the forthcoming work Property and More-than-Human Personhood. The abstract previews: 

It was international news when the New Zealand Parliament, in a 2017 settlement of Māori land claims, declared that the Whanganui River “is a legal person and has all the rights, powers, duties, and liabilities of a legal person.” Such grants of non-human personhood seem peculiar. They contradict a conventional understanding that Western legal doctrine inscribes a sharp boundary between human owners of property and objects of that ownership, and only the owners have power. That anthropocentric view is part of what has made AngloAmerican property law an instrument of violent dispossession and extraction. But it is not the only way to read property doctrine. This article uses mainstream current and historical legal sources— recent U.S. case law and Blackstone’s Commentaries to tell a different story, one in which the line between persons and property has always been vanishingly thin.

Drawing on philosophical critiques of modern Western anthropocentrism and the work of Indigenous scholars, the article reveals how everyday property doctrines can accommodate a more holistic worldview. Blackstone is associated with an extreme vision of private property as exclusive individual human control over an objectified world. But viewing his canonical work through a less dualistic lens, the human subjects he describes can appear less potent than the landscape they inhabit. Blackstone’s “permanent and immoveable” land is not just a physical object, and real property combines material and “incorporeal” entities that both restrict and enable owners’ actions. This interactive more-than-human agency persists in land today, for example, in the counterintuitive doctrine of adverse possession and through servitudes that “run with the land” to shape human conduct.

This article is the first to show how traditional Western property law can be reimagined to share legal personhood – and power. Recognizing how longstanding property doctrines support more-than-human personhood matters for two main reasons: (1) It grounds novel grants of non-human personhood in a durable, widely accepted legal framework; and (2) it undermines the hierarchical anthropocentric version of property law that has facilitated and justified Western domination of both non-Western humans and non-human others. The goal is to envision a legal system that will help bring about more sustainable, morally responsible relationships among humans and between humans and others.

Kashyap on "A Critical Race Feminism Critique of Immigration Laws that Exclude Sex Workers: Moving from Theory to Praxis"

Monika Batra Kashyap has published A Critical Race Feminism Critique of Immigration Laws that Exclude Sex Workers: Moving from Theory to Praxis in volume 38 of the Berkeley Journal of Gender, Law & Justice (2023). The abstract is here: 

This Article is the first to apply a critical race feminism (CRF) critique to the current immigration law in the United States, Immigration and Nationality Act (INA) § 212(a)(2)(D)(i), which excludes immigrants for engaging in sex work. This Article will use critical historical methodology to center the role of women of color as the primary targets of not only the first federal law to criminalize sex workers, but also the first explicitly racist immigration law in United States history. The Article will also employ theories of anti-essentialism and intersectionality to show how INA § 212(a)(2)(D)(i) both silences the voices and experiences of women of color sex workers and refuses to recognize the impacts of multiple intersecting systems of oppression. Finally, the Article will connect the critique of INA § 212(a)(2)(D)(i) to the anti-carceral feminist movement to decriminalize sex work in order to move from theory to praxis, and to inspire advocacy strategies and law reform efforts that point to a broader project of transformation. The ultimate goal of this Article is to strengthen links between critical race and immigration law scholarship so that scholars can continue to use CRF as an exploratory analytical tool to examine the intersections of race, class, and gender within immigration law.

Bruce Ching on "Through a Lens of Genocide: A Different Approach for Hate Crimes Legislation"

Bruce Ching has published a new article, Through a Lens of Genocide: A Different Approach for Hate Crimes Legislation, in 75 Rutgers U. L. Rev. 535 (2023). Here is the abstract. 

Hate crimes perpetrators select their victims based on the victims’ identity groups. Policies underlying legislation against hate crimes recognize that such crimes inflict greater harm on society than do the same actions committed for non-biased motives. Genocide may be conceptualized as hate crimes writ large; conversely, a new model of hate crimes legislation might be patterned on legal concepts of genocide scaled down to state or local levels. This new recognition could successfully address criticisms from both liberal and conservative factions along the political spectrum, offering a model that state and local governments could invoke for dealing with bias-motivated incidents that feature the perpetrators’ systemic intent, without focusing on more marginal occurrences. Thus, the hybrid model of hate crime as genocide could appeal to the remaining legislatures that have refused to adopt hate crime statutes, as well as to prosecutors who have had reservations about charging suspects under existing hate crimes statutes. The conceptualization of hate crime as genocide on a state or local level could also encourage local authorities to take action when federal law enforcement is either unable or unwilling to do so.

Samuel Singer and Amy Salyzyn on "Preventing Misgendering in Canadian Courts"

Samuel Singer and Amy Salyzyn have posted "Preventing Misgendering in Canadian Courts: Respectful Forms of Address Directives" on SSRN. This work is forthcoming in the Canadian Bar Review. 

Trans people face significant access to justice barriers and regularly experience discrimination within the Canadian legal system. In this context, respectful forms of address directives seek to prevent the misgendering of courtroom participants by having lawyers and parties proactively identify their titles and pronouns. Multiple Canadian courts have now introduced such directives.

This article situates forms of address directives as simply another control on courtroom speech that contributes to the fair, orderly, and efficient administration of justice. Drawing on examples, including the honorifics used for judges and the evolution of oath and affirmation requirements for witnesses, we detail how courtroom rules have evolved to reflect societal change. The article argues that forms of address directives are an important procedural tool to advance the administration of justice by facilitating equal access to the courts for trans people, providing consistency with the broader legal system’s recognition of trans rights, and facilitating the efficient and orderly administration of justice.

The article then counters arguments that forms of address directives constitute improperly “compelled speech” in violation of the Canadian Charter of Rights and Freedoms guaranteed free expression rights and addresses concerns that these directives may limit a lawyer’s ability to zealously advocate for their clients.

We conclude that forms of address directives are a simple and important mechanism to help address misgendering in courts while emphasizing that much substantive work remains to address trans people’s legal needs in Canada.

Gender Equality Provisions in Trade Agreements

Katrin Kuhlmann & Amrita Bahri, Gender Mainstreaming in Trade Agreements: ‘A Potemkin Façade’? in Making Trade Work for Women: Key Learnings from the World Trade Congress on Gender, Forthcoming (forthcoming September 2023)

The distributional outcomes of trade agreements have historically been uneven, creating both “losers” as well as “winners” and benefitting certain stakeholders while leaving others without benefits or even with negative repercussions. In particular, distributional outcomes can vary between women and men, since they play different roles in society, markets, and economies, and they enjoy different opportunities as well. At times, and sometimes by their very nature, trade agreements can restrict opportunities for women and further increase the gender divide. But in recent years, there has been a drastic upsurge in the number of countries that are incorporating commitments on gender equality in their trade agreements.

Currently, of all free trade agreements in force, around one-third have at least one explicit provision relating to gender equality. Yet almost no trade agreement so far contemplates how gender-related commitments could be implemented or enforced, and no trade agreement approaches gender on a holistic level that can meaningfully address distributional issues. Most legal provisions incorporated in trade agreements so far have been drafted in the spirit of best endeavor cooperation and are often blamed for being mere “Cinderella” provisions. In order to reverse the distributional inequities, a more comprehensive approach based on women’s roles and economic realities is needed, as is further research on what would improve distribution of opportunities for women. With more and more countries considering gender mainstreaming, this raises an important question: Is “gender mainstreaming” in trade agreements used as a “Potemkin Facade” to hide larger distributional issues? This paper will not fully answer this question, but it will expand upon possibilities and offer reflections to spark debate and discussions on this concern.

The Evolving Concept of Gender and Intersectional Stereotypes in International Norm Creation and AI

Rangita de Silva de Alwis, The Evolving Concept of Gender and Intersectional Stereotypes in International Norm Creation: Directions for a New CEDAW General Recommendation, U. Penn. J. Law & Public Affairs (forthcoming) 

A mapping of recent Concluding Observations issued to States parties by the Committee on the Elimination of All Forms of Discrimination against Women (CEDAW), the Committee on the Rights of the Child (CRC), the Committee on the Rights of Persons with Disabilities (CRPD), and the Committee on the Elimination of Racial Discrimination (CERD) provides an analysis of the evolving human right standard by which to examine gender and intersectional stereotypes. The mapping exercise focused on cultural practices and gender stereotypes in the Concluding Observations reveals the CEDAW Committee is more likely than any other above-mentioned treaty body to discuss stereotypes. This provides us with a textual understanding of how stereotypes, culture and traditional practices often overlap and intersect. While gender stereotypes have replaced more overt forms of gender discrimination, these subtle stereotypes constitute different challenges as they are less visible to the untrained eye. The second part of the paper examines how a new generation of stereotypes are being baked into Artificial Intelligence (AI) through AI training data. While writing this paper, Open AI released ChatGPT and other Generative AI and Large Language Models which demand critical examination for emerging forms of gender bias. Last summer, Satya Nadella, the CEO of Microsoft, known for his love of poetry, previewed Open AI’s newest model on Generative AI and asked the chatbot to translate the Persian poet Rumi into Urdu, and then English. He recalls that he exclaimed: “God, this thing.”

Despite the strides in AI innovation, the dangers of potential gender bias are real. Prometheus stole fire from the Greek Gods and was punished for his folly and hubris. He still provided humans with the fire of life and was pardoned by the great Zeus himself. As much as these new technologies have the potential for great good and can advance medicine, science, health care, food security and other forms of human endeavor, they also have great potential for harm and pose risks to human rights. The CEDAW’s new General Recommendation (GR) 40 and the GR 41 (in the pipeline) can create important new normative frameworks that propose a human right-based approach to mitigate the emerging gender stereotypes of new technologies.