Academic journal article Law & Society Review

Federalism and Subnational Legal Mobilization: Feminist Litigation Strategies in Salta, Argentina

Academic journal article Law & Society Review

Federalism and Subnational Legal Mobilization: Feminist Litigation Strategies in Salta, Argentina

Article excerpt

Feminist legal advocates in the province of Salta have developed two of the most important processes of strategic litigation related to women's rights in contemporary Argentina, addressing issues of gender discrimination in the workplace and religious education in public schools. Their legal claims spurred innovative judicial decisions at the local level, as well as the first case of strategic litigation for women's rights to reach and be upheld by the national Supreme Court. In response to these demands, in 2014 the Court established that private companies providing Salta City's public transportation system should comply with a gender quota, and in 2017 it declared that Salta's provisions allowing for religious education within the public education system were unconstitutional. Most notably, women's rights activists in Salta have been able to make judicial gains without counting on a strong organizational infrastructure to sustain litigation, and they have done so in a highly traditionalist enclave, with a local judiciary widely influenced by Catholicism and the presence of a majority of conservative justices in the highest provincial court. That is, we cannot make sense of the development of women's legal mobilization in this case by a straightforward reference to a typically favorable support structure for legal mobilization or a clearly open legal opportunity for feminist legal claims at the local level.

This study poses the question of how can social movements pursue effective legal strategies in a mostly conservative political and legal subnational environment, and without counting on strong material resources for legal mobilization. In this regard, it follows the lead of recent works that have analyzed legal mobilization processes under constrained or challenging conditions for the use of law by social actors (Lemaitre and Sandvik 2015; Vanhala 2012).1 This study argues that to account for a case like Salta, we should consider the impact of federalism on subnational legal strategies, and in particular how federalism interacts with two of the most important variables from legal mobilization studies: support structures and legal opportunities. Its main thesis is that federalism's institutional arrangements can strengthen the capacities of local feminist legal activists to pursue litigation strategies, and that they can do so in two main ways: by fostering the institutional autonomy of government agencies and insider activists working for the defense of rights at the local level, and by creating incentives that facilitate the provision of external legal resources and support for local legal activists in civil society. Among the main conditions for the former mechanisms to work is the existence of favorable institutional and political conditions for the appointment of sympathetic officials at the local branches of federal institutions. With regard to the latter mechanism, among its main scope conditions are a certain degree of inequality in resource availability between legal activists located in different jurisdictions; their common interest in a legal cause; and the legal expertise, gender training, and social capital of local legal activists.

To develop this argument, this article connects two research agendas that have not yet been combined to explain subnational feminist legal mobilization in federal systems: legal mobilization studies and gender and federalism scholarship. It argues that the literature on gender and federalism complements legal mobilization studies in explaining subnational feminist legal strategies under federalism. In fact, the literature on gender and federalism constitutes the most wide-ranging and consolidated body of work on the implications of federal arrangements for a social movement. Its arguments, and their application to the analysis of legal mobilization, can be taken as reference points for the comparative assessment of federalism's impact on mobilization by other social groups as well. …

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