Exploring the relationship between constitutions and gender

Helen Irving explores the relationship between constitutions and gender.

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Handbooks, like encyclopaedias and ‘companions’, are special. They introduce curious readers to a wide range of subjects. They enlighten and stimulate, serving as reference points and sources of knowledge. They are also unique in recording the ideas and perspectives of their time, identifying the range of topics thought worthy of attention. Thus, when a new Handbook appears, on a subject that has a relatively recent research history and is conceptually new, one can be confident that an epistemological shift has taken place. Edward Elgar’s decision to commission a Research Handbook on Constitutions and Gender is a signal of that shift. It affirms the recognition of gender as a matter for constitutional attention, as relevant not merely to constitutional interpretation in case law, but also to constitutional design and constitution-building, to constitutional amendment and its processes, to constitutional citizenship, and to principles of constitutional equality and legitimacy. As the blurb for Constitutions and Gender puts it, ‘Constitutions and Gender portrays a profound shift in our understanding of what constitutions stand for and what they do. Its central insight is that democratic constitutions must serve the needs and aspirations of all the people, and constitutional legitimacy requires opportunities for participation in both the fashioning and functioning of a country’s constitution.’

I was delighted to be invited to edit this Handbook. The understanding that constitutions are ‘gendered’ – having a different or differential impact on men and women, and speaking differently to them – was not new, as I knew from my research. Individual women had expressed this understanding as early as the revolutionary constitution-making era of the 18th century, and had carried it forward in their continuing campaigns to be part of the constitutional community, to enjoy the right to vote and the right to influence constitutional amendment and constitutional jurisprudence: in short, to be full members of the constitutional ‘people’. Throughout the twentieth century, women had also been members of constitution-making committees and constituent assemblies. But, until recently, these roles were few and unsystematic.

In the early years of the twenty-first century, however, pioneering scholars and practitioners around the world began systematically to explore the ways in which gendered relations of power and interests are embedded in the texts of constitutions and reproduced through practices of constitution-making. They began to identify the forms in which gendered norms are expressed, and the multiple ways in which constitutional reform might be put to the service of gender equality, going well beyond simple equality rights provisions.

The subject proved to be broad and evolving, extending also into real-world constitution-making and international norms. As Christina Murray and Cindy Wittke write in their chapter (‘International institutions, constitution-making and gender’) in this Handbook, it is ‘now probably true to say that no process of substantial constitutional review in a democracy or emerging democracy can avoid engaging with gender issues’. The range of other chapters in the Handbook illustrates the multiple dimensions of such engagement and affirms the truth of this observation. Gendered choices in the framing of constitutional provisions and their judicial interpretation concern, to list a few: the relationship between modern and customary law; the structure and operation of federal constitutions; the interplay between transnational and national laws; the composition of constitutional courts; the structure of electoral systems and legislative representation; the principle and form of Indigenous constitutional recognition; the rules governing legal citizenship and nationality. They arise in multiple constitutional challenges: the accommodation of religious rights, reproductive rights, free speech rights, elder rights, and socio-economic rights. On the other side of the gender scale, they are also implicated in historical conceptions of masculinity. All of these topics – and more – are addressed in the Handbook. Multiple country examples, from the long-established democracies to the recently-emerging, are traversed.

This Handbook and the project it builds upon are also a salute to the pioneers of constitutional gender equality, the women (and the men who supported them) who campaigned for a constitutional ‘voice’. The story of Canada’s ‘Famous Five’ is just one historical example, but a particularly striking one. The so-called ‘Persons Case’ began in 1922, when Emily Murphy, Canada’s first woman magistrate, was proposed as a possible appointee to the Canadian Senate. The proposal did not advance. In 1927, Murphy joined with four other women to petition the Canadian Supreme Court for a ruling on women’s eligibility to serve as Senators. The Canadian Constitution of 1867 included a provision governing the appointment of a ‘person’ to the Senate. The Court ruled that ‘person’ did not include ‘female persons’. The word, it reasoned, was to be understood according to its meaning in 1867. At that time, men alone were qualified for appointment. Indeed, women had no rights to sit in any legislative house in the British Empire (or probably anywhere else).

The ‘Famous Five’ appealed (through the Canadian Prime Minister) to the Empire’s highest court, the Judicial Committee of the Privy Council. There, the decision was reversed. The Privy Council observed that women had been traditionally excluded from public office, but concluded that this was, of itself, not decisive. Exclusion, it said, was a relic of ‘barbarous’ days. The Canadian Constitution was a ‘living tree capable of growth and expansion’; ‘To those who ask why the word [person] should include females, the obvious answer is why should it not.’ Women, henceforth, were entitled to sit in the Canadian Senate; the first, Cairine Wilson, was appointed in 1930.

To those who are tempted to ask why gender is relevant to constitutions, the answer must be: how can it not be? The ‘living tree’ has not stopped growing. I am very proud to have worked with a wonderful group of twenty-two authors in assembling this collection, in which this answer is abundantly illustrated.


Helen Irving is Professor of Law at The University of Sydney in Australia.


Irving Constitutions

Constitutions and Gender edited by Helen Irving is available now.

Read the introduction and chapter one free on Elgaronline.

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