Does Gender Specificity in Constitutions Matter?

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INTRODUCTION

"You're a woman; why don't you write the women's rights section?" (1)

With that, 22-year-old interpreter Beate Sirota Gordon, whose only experience with constitutions occurred in her high school social studies class, was entrusted with drafting the new constitutional provisions that would protect Japanese women. (2) Her assignment represents a typical phenomenon in constitution drafting during that period that has persisted to the present--rafters assume that women should be specifically protected (3) but do not see it as a particularly serious, or complicated, element of the constitution. (4) Of the four provisions related to women that Gordon drafted, only one very general provision ended up in the final 1946 Japanese Constitution; (5) the drafters assumed, too, that the interest in women's equality warranted an abstract statement of sex equality but not specific guarantees or protections. (6)

Women's protection clauses--defined in this paper as constitutional provisions that specifically grant or protect the rights of women (7)--have been considered in nearly every constitution drafted since World War II, (8) but little systemic research has been done to explain what difference the clauses make. (9) Examining these clauses is important because they may play a role in expanding (or perhaps even limiting) women's equality. This paper begins to correct this deficiency by exploring the experiences of two countries, Canada and Colombia, to ascertain the importance of these clauses and what lessons they provide for future efforts at securing gender equality through constitutions. (10)

I chose Canada and Colombia as case studies because each country adopted a constitutional enforcement mechanism to implement its respective women's protection clauses. (11) By including an enforcement mechanism, a country demonstrates a commitment to comply with the constitution beyond that which is demonstrated when a country adopts a constitution for purely symbolic reasons. In contrast, the practical legal application of laws is necessarily limited under purely symbolic, or aspirational, constitutions. (12) Because of their constitutions' enforcement mechanisms, Canada and Colombia are "nearly ideal" countries to test for the practical legal application of women's protection clauses. (13)

Limiting this study to two countries means that the paper's findings must be viewed cautiously. Still, the study suggests three recurring themes that provide some guidance for integrating protections for women into new or existing constitutions and help focus a future research agenda with respect to women's protection clauses in other countries.

First, while women's protection clauses cannot be shown dispositively to be the cause of improved legal protection of women, they seem associated with some gains and, in any event, are not connected to a decline in women's rights. Second, many different forms of women's protection clauses exist, each with different potential consequences. Differences exist, for example, in how much judicial interpretation is required to give meaningful effect to the clause, whether men as well as women have rights under the clause, and whether the clause requires litigants to make arguments that reinforce sex stereotypes or otherwise cause long-term disadvantage to women in order to benefit in the short run. Third, while women's protection clauses may help improve the legal protection of women, the case studies demonstrate that the clauses should not be relied upon as the exclusive mechanism for promoting the legal protection of women. A combination of factors in these two countries contributes to women's legal success, such as enforcement mechanisms, social support networks, enabling legislation, and efforts at giving non-privileged parties access to the courts.

This paper proceeds as follows. First, in Part I, I provide a general background of women's protection clauses in constitutions throughout the world. …