Introduction: A Public Law of Gender?

Abstract

The formal recognition of gender, as a category of public law, has swept the world. In a time of rapid legal change, in both new constitutions and old, the public law of gender – and the contested norm of gender equality – is being constituted, legislated and regulated. Of 194 written constitutions around the world, almost all guarantee equality in express terms; almost two thirds entrench equality or non-discrimination guarantees on the basis of sex, and almost one third make express reference to gender. Measures to ensure the equal participation of women and men in political and public decision-making have been introduced in 100 states, and constitutionally entrenched in 15. 189 of 197 member states of the UN are states parties to CEDAW.

This volume includes the perspectives of constitutional, administrative and international lawyers, as well as historians, ethnographers, and political scientists, to critically analyze these apparent accomplishments. We ask – has this widespread legal reform led to real change? Women, in particular, continue to experience an array of gender-based disadvantage and harms: persistent and well-documented vulnerability to violence, including sexual violence, insecurity, and poverty; circumscribed access to education, property and credit; workplace disadvantage and harassment; greater involvement in reproductive, household and care work, without material recognition; and a continued inability to access the political forums and public laws in which these problems have often been sidelined or misunderstood. While these problems may seem intractable for different reasons: culture, ideology, power, political economy – it is clear that law continues to constitute, or insulate, these various effects. Thus it is critical to understand and critique the operation of formal law as one aspect of the continuing gap between the advocacy of gender equality and its substantive achievement.

This introduction brings international and constitutional law together to analyze the features of this gap in terms of enforcement, sincerity, and coverage. First, just as international law exists famously without a centralized enforcement mechanism, so too does domestic constitutional law lack the guarantee of enforcement, even in systems with judicial review. Secondly, treaties, especially the foundational human rights covenants of which CEDAW is part, have always attracted the criticism of ‘window-dressing’, as states are free to ratify treaties without making any reforms in domestic law. A similar criticism has been made about the phenomenon of ‘sham constitutions’. Thirdly, both international law and constitutional law carve out a number of exceptions of application, which have a significant impact on gender. Most prominent in the gap in coverage is the public/private distinction, in which both international and public law are, in the main, concerned only with the regulation of the public sphere. Through reserving particular areas of law from constitutional reach, such as religious personal laws or customary law or private law more generally, the application of public law has limited effect to challenge gendered disadvantage in the very spheres in which it is most heavily experienced and perpetuated. This volume extends enforcement, sincerity and coverage rationales in public and international law to give greater attention to their application to gender.