CLP – The Gendering of Constitutionalism

About this Event

CLP Lecture: 

Speaker: Professor Ruth Rubio Marin (University of Sevilla)

Abstract

How would the history of constitutionalism be told and sequenced if we were to take women´s constitutional subjecthood as the point of reference? What are the forms constitutions have used to entrench or subvert gender orders? The lecture is structured around four phases that indicate the moment when different forms of contraction or expansion of women’s citizenship through constitutionalism first came about. 

The phases are four, namely: 

(1) exclusionary constitutionalism, where constitutional law entrenched sex inequality and women´s inferior legal status. This first form in then followed by three others all of which express a commitment to gender egalitarian constitutionalism and vary depending on what each of them takes a commitment to constitutional equality with respect to the gender order to require. The second phase and or form is 

(2) inclusive constitutionalism which grants women rights equal to those it recognizes to men.

(3) Participatory constitutionalism comes next. It brings women on board as constitution makers and seeks to go beyond equality of right by introducing into the constitution mechanisms to ensure the equal participation of women, though the domain of constitutional equality struggles remains, primarily, the previously male-dominated public sphere. 

Finally we have a fourth phase or form, that of (4) transformative constitutionalism, which, acknowledging the centrality of social reproduction for all, advances the vision of a fully egalitarian and democratic family structure, as the foundational cell in society, thereby challenging the separate spheres tradition and the ways it has allowed for the construction of gender roles and maybe, arguably, gender itself. The lecture ends by raising the question as to whether the current “anti-gender” backlash and its constitutional manifestations can be seen partly as a reaction to the tectonic shift it describes signalling the constitutional disestablishment of nothing less than modernity’s foundational gender order.

From the blurb for the webinar on Eventbrite

Lured to this webinar by the promise of a discussion about the ‘current “anti-gender” backlash’ I signed up in hope that this eminent constitutional lawyer and feminist might speak about the impingement of gender identity ideology and activism on women’s rights globally.

It started off with the UCL host of the webinar telling us that questions to Professor Rubio would be controlled by him – you know how crazy constitutional lawyers can be, so clearly he didn’t want just anybody asking a question. Chat function was also disabled.

Professor Rubio gave a cogent talk through the last century or so of women gaining rights via constitutional law. All well and good. Rubio wore electric blue designer spectacles and had the nicest Zoom backdrop I have seen in a long time. She used the words women, mother, motherhood, and pregnancy liberally. It seemed to be going well, yet even so I could tell that she was not going to push the button. And she didn’t.

When we got to the fourth phase, ominously called ‘transformative constitutionalism’, Rubio talked the usual bullshit about challenging ‘hetero-normative values’ and the importance of same sex marriage in challenging the family as the pillar of society (newsflash: same sex couples cannot reproduce). Something about the importance of men being able to get more time off for parental leave, which had not yet been equalised (why would men need equal leave, they didn’t just push a baby out of their body?). The words ‘gender neutral legislation’ was bandied about.

Rubio was concerned that certain countries had tried to ‘shield’ heterosexual marriages, wondered what may have happened to Roe vs Wade if Trump had remained in power and showed a slide of the Women’s March in March 2017 – making clear where her political allegiances lay.

To conclude, modern constitutionalism was superimposed on an extracted reproductive family structure which was naturalised and even romanticised.

[…]

In the end, the constitutional challenges to gender roles and expectations has brought to the fore the social construction of gender itself, and is now opening constitutionalism to the demands of justice of intersex and transgender citizens. As in the past though resistance to the disestablishment of the gender order, the foundational gender order, was to be expected. In recent years we have indeed witnessed a backlash, as well as a true wave of constitutional initiatives, some pre-emptive, others reactive, some successful, others not so much, in an attempt to entrench the traditional gender order.

[…]

As Amanda Gorman reminded us in her brilliant poem ‘The Hill We Climb’ at Biden’s inauguration ceremony ‘while democracy can be periodically delayed, it can never be permanently defeated. And no country that calls itself a true democracy can do so without ensuring women their equal citizenship’.

Professor Rubio, Lecture, 27 January 2021

And on that bombshell of quoting Amanda Gorman, when Biden had already signed the Executive Order which open up women’s sports and private spaces, her lecture ended. The emerging issues about the muddying of the definition of woman was not addressed and as you can see, she only wanted to refer to the controversy very coyly indeed. You would think a constitutional expert might be more interested in what impact this might have on pensions and prisons, but nah.

In the Q&A, excellently controlled by the host so that we could only see the questions which he wanted to ask her, the closest we got to a challenge was a very gentle prod along the lines of ‘what challenges does intersectionality impose on modern constitutionalism?’ I rather feel that whoever asked that question boxed clever that the question ‘What is a woman?’ was not going to platformed. Rubio reacted to the question all tongue-tied and dropping her head, suggesting that she also thought it had a degree of shade too, though we finally arrived at the ‘axis of oppression’ spiel.

The only other interesting thing was that the host noted that most constitutional lawyers are men, other areas of law are much more favoured by women.

Fucking hell, it’s really lamentable isn’t it?


Postscript: On 24 February UCL posted the recording of the event.


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