On Constitutionalism and Women’s Citizenship

On Constitutionalism and Women’s Citizenship Ruth Rubio-Marı´n* Abstract: This article is an attempt to explain the forms in which constitutionalism has facilitated or hindered women’s equal citizenship throughout history and with a particular emphasis on Western constitutionalism, especially the US and continental Europe, but also with an eye on new constitutionalism and its innovations. In so doing, the article takes into account not only wom- en’s access to the rights first conquered by men but also the extent to which the forms of participation traditionally assigned to women—neither in the state nor in the marketplace, but rather in the household and in the family— have become recognized as forms of citizenship contribution. In other words, it tells the story of the relevance of constitutionalism for women’s citizenship as defined in male terms (that is to say, with a focus on equal rights and participation in the so-called public sphere), as well as for women’s ability to redefine the very understanding of citizenship to include participation in social reproduction, in and through the so-called domestic sphere. Key words: gender constitutionalism; women’s citizenship; constitutional equality; gender roles disestablishment; gender equality backlash. 1. Introduction In 1872, Justice Bradley of the United States Supreme Court, in a case denying women the right to practice law, declared in an infamous concurring opinion that: [t]he constitution of the family organization, which is founded in the divine ordinance, as well as in the nature of things, indicates the domestic sphere as that which properly belongs to the domain and functions of * Professor of Constitutional Law of the University of Seville, Spain ([email protected]). This essay is based on two prior lectures: the Gruber Distinguished Lecture at Yale University, delivered on September 12, 2019 and the Current Legal Problems Lecture at UCL on January 21, 2021. I would like to express my deep gratitude for both invitations and the comments received. The arguments and history it describes are developed in greater length, depth and richness of nuances in my upcoming book Gender Global Constitutionalism and Women’s Citizenship: From Exclusion to Transformative Inclusion (CUP, forthcoming 2022). V CThe Author(s) 2021. Published by Oxford University Press on behalf of Faculty of Laws, University College London. This is an Open Access article distributed under the terms of the Creative Commons Attribution-NonCommercial- NoDerivs licence (https://creativecommons.org/licenses/by-nc-nd/4.0/), which permits non-commercial reproduction and distribution of the work, in any medium, provided the original work is not altered or transformed in any way, and that the work is properly cited. For commercial re-use, please contact [email protected] Current Legal Problems, Vol. 74 (2021), pp. 361–402 https://doi.org/10.1093/clp/cuab013 Advance Access published 9 November 2021 Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 womanhood. The paramount destiny and mission of women are to fulfil the noble and benign offices of wife and mother. 1 In 2003, Colombian Constitutional Court Justice Clara Ine´s Vargas Herna´ndez, writing for the majority in a case which invalidated the restrictive terms of a newly established paternity leave, made reference to the ‘masculine revolution’ of the end of the millennium and to ‘a new generation of fathers who have discovered that they can get involved in their children’s upbringing, just as mothers do, without damage to their virility’, as well as to an ‘emerging model of ‘committed fatherhood’ characterised by the elements of responsibility, emotional nurturing, physical accessibility and material support’. 2 Although 131 years apart, both courts seem to be talking about familial gender roles which must be preserved or subverted, as a matter of constitutional law. Many questions could certainly be raised in trying to account for the different viewpoints expressed in these decisions. Did the constitutions the justices were interpreting say anything about the family and care roles within it? Did they refer to sex equality and in what terms? Were these constitutions drafted by women or, at least, under the influence of women’s input or mobilization? How many if any were the women sitting on the benches deciding these cases? More importantly, how does the vision of men and women they describe refer to the prevalent understandings of women’s citizenship at the time when the opinions were written? One thing is certain: these decisions are not just talking about rights and duties of men and women; they are also defining men and women’s domains of participation. Whereas Bradley’s opinion refers to divine ordinance and a state of nature, which the constitution takes for granted, and normatively reduces women to the domestic sphere and the role of mother and wife, in its appeal to a new concept of fatherhood, the Colombian case refers to an egalitarian family structure which can no longer see women as relegated to the societal function of reproduction, a function in which men must equally participate. This article is an attempt to explain, in very broad and hence necessarily impressionistic terms, the forms in which constitutionalism has facilitated or hindered women’s equal citizenship throughout history. While drawing from many experiences around the world, it places 1 Bradwell v Illinois, 83 US 130, 141–42 [1873]. 2 Corte Constitucional [CC] [Constitutional Court], abril 1, 2003, Sentencia C-273- 03, (Colom) para 5. 362 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 particular emphasis on Western constitutionalism, especially the US and continental Western Europe, mainly because of their leading role in the early history of written modern constitutionalism as well as my own situated academic background. In so doing, the article takes into account not only women’s access to the rights first conquered by men but also the extent to which the forms of participation traditionally assigned to women—neither in the state nor in the marketplace, but rather in the household and in the family—have become recognised as forms of citizenship contribution. In other words, it tells the story of the relevance of constitutionalism for women’s citizenship as defined in male terms (that is to say, with a focus on equal rights and participation in the so-called public sphere), as well as for women’s ability to redefine the very understanding of citizenship to include participation in social reproduction, in and through the so-called domestic sphere. To do this, the essay will begin with the birth of constitutionalism, which entrenched a two-track citizenship model for men and women on the basis of a theory of separate spheres. It will take us through the times and conquest of women’s suffrage and its important but limited impact on women’s constitutional equality, given that voting rights for women did not produce an overall subversion of the gender order as the old ‘head and master’ rules coexisted virtually everywhere with women’s newly conquered political voice. We will then explore second-wave feminism and its much more meaningful though still limited impact on women’s constitutional citizenship, with the ideal of a gender-neutral legal order becoming the new norm and replacing the pater familias regime which had conceived of women as legal minors. We will see how, under the doctrine of formal equality, and with an emphasis in the public sphere and in equal rights, discrimination on the grounds of sex consolidated as a constitutional wrong, helping women not only assert their equal legal status vis-a`-vis their husbands but also join the marketplace on ever more equal terms with men. We will also see how, with very narrow exceptions, broadening the boundaries of contestation beyond market dynamics and the public sphere to include, as second wave feminists had wanted, housework, sexuality, and reproduction was something inclusive constitutionalism failed to achieve. The essay will then bring us to contemporary times, carrying us through what I call ‘women’s participatory turn’. Beginning in the late 1980s and flourishing since mid-1990s, this participatory turn sees women’s claims turning from equal rights to a broader claim of equal participation not only in the employment domain, but also in politics 363On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 and positions of authority and decision-making, calling on constitutional doctrines and norms of substantive equality and parity democracy to justify the adoption of quotas and other affirmative action measures serving this purpose. This participatory turn also refers to women ultimately joining constitution-making processes in significant ways and is connected to an expansion of the constitutional agenda which we approach next. Indeed, the essay discusses next what we could call the ‘new millennium’ gender constitutionalism, which is gradually acknowledging the centrality of social reproduction for all and of an egalitarian and democratic family structure, advancing a vision which disentangles the forms of contribution in the public and private spheres from normatively constructed gender roles of both men and women. Expressions of this contemporary transformative gender agenda include the affirmation of same-sex marriage, the fight against domestic and other forms of gender violence, the consolidation of womens reproductive freedom and the recognition of the need to enhance co-responsibility around human reproduction, as well as the acknowledgment of the socially constructed nature and fluidity of the concept of gender itself. Unfortunately, we cannot end our story without reference to the contemporary gender equality halt or backlash contesting some of the recent victories and seeking a reaffirmation of the traditional gender order built around old conceptions of the family. It is important to notice that the timeframe followed in the essay pays attention to the moment when the different forms of contraction or expansion of women’s citizenship through constitutionalism first came about in history. However, it by no means suggests an evolutionary path which must sequentially repeat itself in the advancement toward women’s constitutional equality in every jurisdiction. It is thus best to think of these categories as forms of constitutionalism rather than stages and to consider them forms which can vary in time and sequence among national jurisdictions and which are not, for the most part, mutually exclusive, especially since the last three articulate different modalities of egalitarian constitutionalism. These forms are: (1) exclusionary constitutionalism, where constitutional law significantly fails to consider sex equality to be a constitutional concern and in fact contributes in sealing women off the political community and public sphere by supporting the doctrine of the separate spheres and women’s relegation to the private sphere; (2) inclusive constitutionalism, which instead takes on board the goal of granting women rights equal to those it recognizes to men building on a constitutional notion of sex equality and a non-discrimination mandate interpreted as challenging 364 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 traditional gender stereotypes; (3) participatory constitutionalism, which, relying on substantive notions of equality and a revisited understanding of democracy, places the emphasis on the need to ensure women’s equal participation in a broadly conceived thus far maledominated public sphere; and (4) transformative constitutionalism, where constitutionalism supports the agenda of radically subverting the original gender order by adding to the incorporation of women in the public sphere the reinterpretation of the domestic sphere as also a socially relevant domain of participation and applying within it the constitutional ethos of democratic equality through the complete disestablishment of gender roles. As one can see, these four forms are defined on the basis of the role which constitutionalism has played with regard to women’s citizenship and to the disestablishing of the separate spheres and gender order which modern constitutionalism helped establish since its foundation. Before we start, a few additional caveats. Not only am I not suggesting that this is the evolutionary path which sequentially repeats itself in the advancement toward women’s constitutional equality in every jurisdiction. I am also fully aware that in many jurisdictions (such as those with a stronger parliamentary tradition or weaker forms of judicial review) a similar evolution in women’s citizenship took place mostly through legislative struggles and milestones, with written constitutions thus playing a minimal role. The question I seek to explore is thus more modest: to the extent that constitutions and constitutional litigation played a role in shaping the dynamics of inclusion or exclusion of women from constitutional membership, what was it and how was it achieved? Nor am I suggesting, of course, that this role has been unequivocally a positive or a linear one. But now I am getting ahead of myself. Let me start from the well-known beginning asking the reader for forgiveness for the many oversimplifications that I will incur as the price to summarize in one short piece of scholarship the (her)story of some of the main intersections between constitutionalism and women’s citizenship across time and space. 2. Exclusionary Gender Constitutionalism The French and American Revolutions signal the birth of modern rights-based enlightened constitutionalism. Whereas in 1776 the American Declaration of Independence provided that ‘governments 365On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 are instituted among men, deriving their just powers from the consent of the governed’, only a few years later, in 1789, the French Declaration of the Rights of Man and of the Citizen proclaimed the ‘freedom and equality of men at birth’. Unfortunately, both Declarations actually meant what they said. Women of all ethnicities and races, more than half the population, were excluded from the body whose consent was required for the legitimation of government, just as were all but a small subset of men essentially white, propertied, and free. This was not a minor omission. In fact, sex inequality was central to both the liberal and republican traditions of citizenship which modern constitutionalism inherited and was structurally built on. Both wom- en’s exclusion from the public sphere and the specific focus on the public sphere as a regulatory domain were foundational to the modern constitutional order. In the modern republican tradition, citizens were expected to contribute to the common good, but this meant different things for men and women. Men were expected to devote their energies to the business of soldiering and governing the city. Instead, wom- en’s civic role consisted in procreation and the instilment of love for, and guardianship of, republican virtues and morals in the private sphere, mainly as mothers. 3 Women did not fare much better under the liberal tradition. 4 In the bourgeois societies in which the liberal discourse of universal freedoms and rights flourished, subjects and rightsholders were only those endowed with property (including that of the self), those who could sustain themselves, those who, in other words, were subjected to no one. By definition, these could not be women, not even “free women” who were typically denied full property rights, depended on their husbands, and were said to be destined to taking care of others. Now, how could women’s exclusion be reconciled with the egalitarian promise which was foundational to modern constitutionalism? The answer lies in the marital family. Marriage as contract was the institution that, in modern times, would embody a woman’s consent to her place in both society and the political community, and love was to facilitate it all. Thus, beginning with the early years of the Industrial Revolution and the decentring of production away from the household, the era of patriarchal ‘political marriage’ gradually gave way to a 3 R Lister, Citizenship: Feminist Perspectives (2nd edn, New York University Press 2003) 71. 4 R Lister and others, Gendering Citizenship in Western Europe: New Challenges for Citizenship in a Cross-National Context (The Policy Press 2007) 21. 366 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 system dubbed by Coontz as ‘love-based marriage’, the ‘ideal of lifelong monogamy and intimacy culminating with the male breadwinner/ full-time housewife marriage model’. 5 The idea that love requires equality of rights as a baseline was, however, not internalised. In fact, as Carole Pateman reminded us in her pioneering work, 6 the contractual fiction of free and consent-based marriage allowed the notions of hierarchy and community which the modern project was supposed to replace to go largely unchallenged for women. A family exceptionalism, so to speak, was built into the constitutional project since its very inception, carving out what, in federal terms, could be visualised as a space of white male supremacy and governance in the home, where the law of nature (if not divine law!) still dictated the norms while the artefact of contract and consent legitimised the different degrees of expropriation of wom- en’s household labour and enforced sexual and reproductive work, whether as wives, domestics or slaves, in ways which would eventually sustain the new market economy. Yet this is clearly not what many women at the time had wanted the revolutionary struggle to be, nor was this the desire of their daughters and granddaughters—women seizing gender silent constitutions to advance their rights, including suffrage, throughout the nineteenth century. The revolutions in the United States and France inspired calls to vindicate women’s rights and reorganise marriage itself. In England, in 1792, Mary Wollstonecraft’s Vindication of the Rights of Women would inspire the constitutional campaigns of women for decades to come. A year earlier, in France, in 1791, Olympe de Gouges wrote her Declaration of the Rights of Women and the Female Citizen, including a little-known reference to reproductive justice and a postscript, a ‘Form for a Social Contract between Man and Woman’, a veritable manifesto of equality in marriage. 7 Her manifesto called not only for universal suffrage but also for women’s access to public office, equal property rights, and decision-making powers for husbands and wives. Many decades later, Cady Stanton would replicate the exercise by recasting the text of the American Declaration of Independence as a ‘Declaration of Sentiments’. Adopted at the Seneca Falls Convention in 1848, it demanded the admission of women to all the rights and privileges which belonged to men as citizens. 5 S Coontz, Marriage, a History: How Love Conquered Marriage (Penguin Books 2006) 145-46. 6 C Pateman, The Sexual Contract (Stanford University Press 1988). 7 Cited in H Irving, Gender and the Constitution: Equity and Agency in Comparative Constitutional Design (Cambridge University Press 2008) 7. 367On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 Although it is the struggle for women’s suffrage which has come to be known as the epitome of women’s mobilisation during the nineteenth century, women were engaged in other constitutional causes as well. In the nineteenth-century United States, many, though by no means all, women were active abolitionists who analogised their experience of domestic servitude to the enforced servitude of slavery, drawing attention to the dual exploitation of slave women, who were sexually used by their masters and exploited for their labour. As Akhil Amar puts it, women were both ‘in large part the agents and the subjects of the Thirteenth Amendment’ ratified at the close of the Civil War in 1865, prohibiting slavery. 8 In 1873, the Women’s Christian Temperance Union was established, seeking prohibition and politicising the family abandonment, domestic violence, and sexual abuse which women experienced and attributed to the consumption of alcohol. The movement ended up having an impact on the ratification of the Eighteenth Amendment in 1919 and its replacement by the Twenty-First Amendment in 1933. In Australia, too, women’s involvement in the constitutional process during the 1890 s was paramount, leading to the adoption of the country’s Constitution in 1900, centred on securing women’s franchise (which had in fact already become a reality in two colonies) and ensuring that the prohibition of the sale and trade of liquor remained within state jurisdiction. 9 Early constitutional involvement to ensure women’s equality was sought also through court litigation. Indeed, in the United States, the adoption of the Fourteenth Amendment in 1868, whose historical purpose was to force former slave states to recognise the legal citizenship of emancipated slaves, encouraged women to come forward and claim the privileges or immunities of citizenship. This is how Myra Bradwell in Bradwell v Illinois, came to claim the right to earn a livelihood by obtaining a license to practice as a lawyer, only to be told by the Court that the privileges referred to did not include her claim and to be sent home to do "a woman’s work". Constitutional interpretation was also unsuccessfully put to the test that same year by Susan B. Anthony in her trial for the federal crime of voting without the right to vote, only to find that a systematic interpretation of the Constitution did not support her claim to be granted suffrage as a citizen privilege, because the Fifteenth Amendment, ratified in 1870 had not listed gender or sex 8 See A Reed Amar, ‘Women and the Constitution’ (1995) 18(2) Harvard Journal of Law and Public Policy 465, 467. 9 Irving (n 7) 76-78. 368 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 (only race, colour, or previous condition of servitude) among the prohibited grounds for denying the right to vote. 10 The following year, in Minor v Happersett, 11 the Supreme Court once again denied another woman the right to vote in state elections. Soon enough, it became obvious that, to conquer women’s suffrage, the only conducive way was to turn to law reform, constitutional or otherwise. In the United States, a campaign began for what was hoped would be the Sixteenth Amendment, recognising women’s right to vote, a proposal which was first introduced in Congress in 1878, but only culminated 40 years later with the ratification of the Nineteenth Amendment in 1920. Notice that the achievement came after women had already gained suffrage on equal terms with men and at all levels of elections in many other parts of the world through nonconstitutional means: Australia (1902), Finland (1905), Norway (1907), and Canada (1918). These were all countries without a constitutionally entrenched bill of rights, something which suggests that, where rights-based constitutionalism existed, it did not necessarily facilitate the affirmation of women’s equality, given that this constitutionalism was assumed to be superimposed on an implicitly established male-dominated family order. In fact, whether fought for through constitutional means or otherwise, normative motherhood—the idea of reducing women to the domestic sphere and to the roles of mother and wife—and the separate spheres ideology played a prominent role in the struggle for suffrage in various and sometimes contradictory ways even though this idea was never meant to apply to all women equally. Thus, while some feared that women’s vote would disrupt family life, the argument that, as mothers and providers of care, women were unsuited for political concerns was sometimes turned on its head. For many suffragists, motherhood made for good and caring citizens, particularly suited to participate in local politics. Indeed, many women activists shared the view that men’s and women’s contributions to the nation were of a different kind and it was the confluence between egalitarians and ‘maternalists’ which contributed to the ultimate success of the cause. 12 10 Irving (n 7) 10-11. 11 88 US 162 (1874). 12 K Cowman, ‘Female Suffrage in Great Britain’ in B Rodrı´guez Ruiz and R Rubio- Marı´n (eds), The Struggle for Female Suffrage in Europe: Voting to Become Citizens (Brill 2012) 275–76; E Boris, ‘The Power of Motherhood: Black and White Activist Women Redefine the “Political”’ (1989) 2(1) Yale Journal of Law & Feminism 25–49. 369On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 surprisingly, under the banner of sex neutrality and a doctrine of formal equality built around the sameness-difference dilemma, many of these struggles were also led by men seeking access to those benefits and/or protections which women had enjoyed as dependent caregivers (such as care-related tax exemptions or access to preferential treatment in orphanage or survivors’ pensions) or to privileges which, at best, could be considered double edged (such as early retirement for women). 29 In response to the various claims under the new constitutional equality doctrine, courts would have to confront difficult dilemmas about how to manage the transition between different gender regimes without further overburdening women. Also, they could try to neutralise but could not entirely deny the relevance of all the differences between men and women. In fact, it was the narrower or broader interpretations of such differences and the consequences of those which were not strictly biologically determined which ended up shaping the different understandings of constitutional sex equality in the US and continental Europe, especially from the 1980s onwards. In the United States, Frontiero v Richardson, 30 adopted in 1973 (a case dealing with a wage-earning wife in the job of lieutenant in the US Air Force who sought housing and medical insurance for her husband), was the first case in which the Court articulated the now orthodox view that laws based on sex stereotypes are constitutionally impermissible, denouncing the ‘romantic paternalism’ on which the history of separate spheres had been built. Henceforth, the constitutional sex equality doctrine would evolve, turning gender antistereotyping into the essence of the sex antidiscrimination principle. Whatever the statistical evidence could say about ‘functional’ enduring differences between the sexes (including, most tellingly, whether women continued to bear most of the childrearing responsibilities), any law which generalised on the basis of such evidence would be interpreted as ‘normalising’, sanctioning, or entrenching different sex roles, 29 See JA Baer, ‘Women’s Rights and the Limits of Constitutional Doctrine’ (1991) 44(4) Western Political Quarterly 821, 823, table 1, indicating that men brought eighteen of the twenty-six constitutional cases decided by the US Supreme Court between 1971 and 1984. See also B Baines, ‘Using the Canadian Charter of Rights and Freedoms’ in B Baines and R Rubio-Marı´n (eds), Gender of Constitutional Jurisprudence (CUP 2004) 52, arguing that, of all the sex discrimination cases decided during the first three years after the equality provision in the Canadian Charter (section 15) became effective, thirty-five were brought by or on behalf of men and only nine by or on behalf of women. 30 411 US 677 (1973). 376 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 and hence, as discriminatory. And although the Court did not rule out that differential treatment could be established as some form of compensation for past discrimination, 31 its anti-classification/symmetrical approach to the equal protection clause, replicating some of the central features of its racial anti-classification approach (such as the requirement of intent), 32 would make, in principle, affirmative or ameliorative action constitutionally suspicious under intermediate scrutiny review. As a result, especially since 1974 when, in Geduldig v Aiello, 33 the Supreme Court rejected the claim that pregnancy-based discrimination amounted to constitutional sex discrimination, this framing of the constitutional sex equality principle has limited the possibilities of relying on the Constitution to derive protections for pregnant women and working mothers, including the set of available legislative remedial options. These have had to be crafted in gender-neutral ways, mostly by assimilating reproduction-related employment hurdles to sickness, something which, many have argued, has contributed to rendering the social value of human reproduction invisible, leaving gendered patterns shaped around it basically unchanged. 34 The New Right conservative agenda of the 1980s was also not conducive to the broader recognition of the need to socially distribute the costs of human reproduction which the feminist movement had claimed. True, Roe v Wade, 35 decided by the US Supreme Court in 1973, granted women and their doctors the right to abortion and the case embodies women’s most successful attempt to insert some elements of the reproductive rights agenda into the gender-neutral constitutional framework of the time. In fact, it might have succeeded in offering a venue for articulating a significantly broader agenda of reproductive justice. But its grounding on privacy notions rather than equality values shut down this possibility. In 1980, the US Supreme Court decided Harris v Mac Rae, 36 a case validating the restriction of federal funds for abortion, de facto turning abortion into a privilege of the better off and leaving poor women’s reproductive autonomy without constitutional shelter. 31 See, for instance, Schlesinger v Ballard, 419 US 313 (1975) and Califano v Webster, 430 US 498 (1977). 32 See RB Siegel, ‘Equality Talk: Antisubordination and Anticlassification Values in Constitutional Struggles over Brown’ (2004) 117(5) Harvard Law Review 1470. 33 417 US 484 (1974). 34 JC Suk, ‘Are Gender Stereotypes Bad for Women? Rethinking Antidiscrimination Law and Work-Family Conflict’ (2010) 110(1) Columbia Law Review 16, 55. 35 410 US 113 (1973). 36 448 US 297 (1980). 377On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 Given Western Europe’s social welfarist and maternalist constitutional traditions, it was to be expected that its constitutional sex equality doctrine would take a somewhat different turn. Certainly, the 1970s and early 1980s signalled a moment of constitutional convergence with developments overseas. In Europe, for instance, the courts had, to a lesser or greater extent, during the 1950s and 1960s, embraced a sort of ‘separate but equal worth doctrine’ relying on wom- en’s greater devotion to housework which they simply assumed, 37 but they would eventually abandon it in the 1970s. At a legislative level, major family code reforms also took place in several countries to overcome the legal minor status of married women and to secure formal equality. Yet, under the influence of EU antidiscrimination legislation, and the growing influence of substantive equality notions and motherhood, pregnancy, and family protective constitutional provisions, an accommodationist constitutional doctrine soon developed, seeking to provide women with the actual means to combine pregnancy, motherhood, and family care with wage labour, at least to a certain extent. Under what we could call Europe’s maternalist accommodationist model, courts came to see pregnancy and motherhood protections not only as compatible with constitutional sex equality, but in fact as deriving from it, in the understanding that failing to accommodate ‘wom- en’s gender-specific needs’ and ‘forms of employment’ could amount to unacceptable indirect discrimination. And so, although protection for pregnant women and working mothers in continental Europe has come mostly through legislation (the tradition of maternity leave, for instance, has been widely consolidated since the foundation of the welfare state), where they exist, motherhood and family protection constitutional clauses (typically framed as directive principles and not as enforceable rights) have been read as supporting court interventions whenever the existing protections were deemed to be insufficient to accommodate women’s specific needs in the labour market. Because the features of women’s employment (e.g., part-time, sex-segregated, lower paid) were and continue to be in fact related to women’s ongoing shouldering of a greater share of family responsibilities, it can be argued that this constitutional doctrine of sex equality accommodated gendered realities but at the expense of normalising women’s ‘double shift’ and ‘mommy tracks’, thus accepting the ensuing dignitary and 37 See R Rubio-Marı´n, ‘The (Dis)establishment of Gender: Care and Gender Roles in the Family as a Constitutional Matter’ (2015) 13(4) International Journal of Constitutional Law 787, 792-796. 378 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 distributive harms entailed by the endorsement of normative motherhood and the normalization of gender segregated labour markets. Therefore, in essence, the European approach, although less assimilationist in nature and more committed to an anti-subordination logic which compels public powers to remove de facto obstacles women encounter in society, 38 has also had its shortcomings, especially since it too has failed to challenge traditional internal family arrangements and the impact which even gender-neutral norms have on perpetuating them. Now, considering Europe’s maternalist constitutional tradition, it is not surprising either that, when the abortion debate was taken to the courts in Europe, around the same time as in the United States, 39 where the courts did not simply defer to the legislature denying the foetus constitutional standing, 40 they ended up crafting a constitutional architecture that, in the name of the right to life of the unborn (or the constitutional value it embodies), in fact ended up limiting, rather than encouraging or backing legislative attempts to assert women’s reproductive autonomy by turning pregnant women, constitutionally speaking, into motherhood duty bearers. At the same time—and here comes the other dimension of the European maternalist and welfarist tradition—some courts explicitly addressed this as a duty which arguably fell not only on women but also on the entire community. Under this construction, abortion came to be constitutionally tolerated, not as a right, but as a wrong to be accepted only in limited circumstances or, for lack of better alternatives (given the extremely limited efficiency of criminalization), to dissuade pregnant women, but it was publicly funded. 41 I am referring to the abortion constitutional architecture 38 On the antisubordination approach to the principle of equality, see OM Fiss, ‘Groups and the Equal Protection Clause’ (1976) 5(1) Philosophy and Public Affairs 107, 107-108, 157. For a rich account of the analytic framework of substantive equality, see S Fredman, ‘Substantive Equality Revisited’ (2016) 14(3) International Journal of Constitutional Law. See also CA MacKinnon’s commentaries on Fredman, ‘Substantive Equality Revisited: A Reply to Sandra Fredman’ in ibid 739–46. 39 Between 1974 and 1975 there were constitutional decisions on abortion in Austria, France, Italy, and Germany. See M Nijsten, Abortion and Constitutional Law: A Comparative European-American Study (European University Institute 1990). Conseil Constitutionnel [CC] [Constitutional Court] decision No 74–54DC, 15 January 1975, J.O. 671 (Fr). 40 In both Austria and France, the constitutional courts did not grant unborn human life any constitutional standing. See [1974] Erklaerungen des Verfassungsgerichtshofs 221, decision of 11 October 1974. 41 See R Rubio-Marı´n, ‘Legal Transfer of Women and Fetuses: A Trip from German to Portuguese Abortion Constitutionalism’, in G Frankenberg (ed), Order from Transfer: Comparative Constitutional Design and Legal Culture (Edward Elgar Publishing 2013. 379On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 build around the landmark case of the German Federal Constitutional Court, adopted in 1975, 42 and to the decisive impact it would later have in shaping abortion constitutionalism in many other European countries, such as Spain, Portugal, and, later on, Hungary. 43 To summarise, inclusive gender constitutionalism enabled the recognition of sex equality to be accepted as a constitutional imperative and to overcome the logic of family exceptionalism that had validated marital status-based differentiations and other deviations from the principle of gender neutrality which had sealed women’s dependence on men. Foregrounding a notion of formal equality, this form of constitutionalism proved adequate to fight against gender stereotypes but much less so to accommodate women’s motherhood and pregnancy related needs in general, and in the employment sector in particular. For this reason, an antistereotyping and a maternalist tradition of inclusive constitutionalism developed side by side, each with its potential and limitations, with family and motherhood clauses in some constitutions tilting the balance in favour of maternalist accommmodationism rather than assimilationist workerism. With the male norm as a standard, once the head and master laws were discarded, inclusive constitutionalism in the 1970s, 1980s and early 1990s ended up prioritizing the domains thus far inhabited by men, like the marketplace, as relevant realms for constitutional equality struggles, thus foiling second-wave feminists’ attempts to expand the boundaries of contestation beyond market dynamics and to include housework, sexuality, and reproduction within the realm of constitutional equality. Without the latter, however, equal participation in the public sphere would remain elusive even under gender neutral legal orders. This is why, at the turn of the century, women started placing emphasis precisely on equal participation both in the public and in the private sphere. After all, the two were deeply interrelated: without equal participation including equal representation in the public sphere it was difficult for women to broad- en the agenda in ways which would allow to also address the injustices women experienced in the ‘private domain’. 42 See BVerfGE 39, 1 (25 February 1975). The architecture was refined though not fundamentally altered by BVerfGE 88, 203 (1993). 43 See, for Spain, Spanish Constitutional Court’s decision STC, 11 April 1985 (No 53/1985) (Spain); for Portugal, Tribunal Constitucional, ‘Aco´rd~ao do Tribunal Constitucional No 25/84’ in Aco´rd~aos do Tribunal Constitucional (vol. 2, Coimbra Editora 1984) 7 ff.; ‘Aco´rd~ao do Tribunal Constitucional No 85/85’ in Aco´rd~aos do Tribunal Constitucional (vol. 5, Coimbra Editora 1985) 245 ff.; for Hungary, see Alkotma´nybı´ro´sa´g (AB) [Constitutional Court], 48/1998 (XI. 23.), Magyar Ko¨zlo¨ny (MK) [Official Gazette of Hungary], 1998/105, 26 (Hung). 380 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 4. Participatory Gender Constitutionalism Women had good reasons for not confining themselves to the goal of equal entitlements nor to the aim of inhabiting the employment sector which inclusive constitutionalism facilitated. Women had good reasons to turn their gaze to the notion of participation in each and every site of decision-making and authority. In many ways, equal entitlements had not taken them very far. Notice that, even in those few countries where women had gained suffrage at the turn of the twentieth century, by the 1960s they had, at best, crossed the 20 percent threshold in parliamentary seats. Thus, by the 1980s, the women’s movement, increasingly galvanised through international women’s conferences, felt sufficiently empowered to begin reaching beyond legal rights to claim equality in decision-making power, something which gradually led to a ‘participatory turn’ in the gender equality narrative and movement which continues to this day. While still reclaiming the centrality of rights, this gender equality narrative began endorsing the need to go beyond equal rights to embrace substantive or de facto equality (measured in real opportunities and concrete results), as well as equal empowerment, with parity democracy or gender-balanced participation turning into new desired standards of political legitimacy. If the Convention on the Elimination of All Forms of Discrimination Against Women, ratified in 1979, embraced the legitimacy of temporary special measures to ensure women’s equal opportunities, it was Beijing’s Platform of Action emerging in 1995 from the Fourth World Conference on Women that, at a global level, best epitomised the participatory turn by including the strategic objectives of women’s equal access to and full participation in power structures and decisionmaking positions. 44 This gender participatory turn is most paradigmatically expressed through the global—and still growing—spread of gender quotas (with seventy countries currently having a constitutional or legislative provision mandating that women constitute a certain percentage of candidates or seats). Women joining constitution-making processes in more significant numbers can be seen as an inherent part of it. Of all the constitutions enacted after World War II, only a few of them (mostly in Asia, the first one being the 1947 Republic of China Constitution) contemplated gender quotas to enhance the political representation of women among other disadvantaged groups in an 44 See Beijing Declaration and Platform for Action, 184 and 191a, and G1. 381On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 attempt to subvert the legacy of colonial stratification and subordination in the service of specific nation-building projects. 45 On the other hand, in Europe, the adoption and spread of legislative gender quotas initially took place in spite of, and not thanks to, constitutionalism. Only occasionally did the courts call on general notions of substantive equality (like in Spain) to back their adoption. 46 More frequently, constitutional reforms were required, either pre-emptively (i.e. to avoid likely constitutional hurdles, as in Portugal) or ex post (i.e. to overcome constitutional obstacles which had already been declared by the courts, as in France or Italy). 47 Constitutional debates on the matter are currently ongoing in Germany too since in July 2020, the Constitutional Court of Thuringia declared unconstitutional a parity law for local elections. 48 Among the many justifications of why legislative quotas were not legitimate short of constitutional reform we can find arguments around formal equality, political party autonomy, active and passive suffrage rights, as well as traditional and constitutionally embedded conceptions of representative democracy and citizenship. Needless to say, the formalistic and anti-stereotyping approach to constitutional gender equality in the US have failed to provide fertile ground for the spread of gender quotas in the context of growing suspicion against race-based affirmative action. 49 Yet constitutionalism has been a facilitator, and not an obstacle, of quota adoption in other regions of the world, especially when the pertinent enabling constitutional clauses were introduced as part of broader democratising agendas, with women’s movements taking an active role in their articulation. In India, the Seventy-Fourth Constitutional Amendment, enacted in 1992, added women quotas to the reserved seats for scheduled castes and tribes in local Panchayats 45 See articles 64, 134, and 135 of the Chinese Constitution. See also R Rubio-Marı´n and Wen-Chen Ch, ‘Sites of Constitutional Struggle for Women’s Equality’ in M Tushnet, T Fleiner, and C Saunders (eds), Routledge Handbook of Comparative Constitutional Law (Routledge 2015) 308. 46 See STC, 29 January 2008 (No 12/2008) (Spain). See also B Rodrı´guez Ruiz and R Rubio-Marı´n, ‘The Gender of Representation: On Democracy, Equality and Parity’ (2008) 6(2) International Journal of Constitutional Law 287. 47 See R Rubio-Marı´n, ‘Women’s Political Citizenship in New European Constitutionalism: Between Constitutional Amendment and Progressive Interpretation’ in H Irving (ed) Gender and Constitutions (Edward Elgar Publishing 2017) 323-356. 48 See Thu¨rVerfGHG 2/20, July 30, 2019 (Thu¨ringen) (Ger.). For a similar result achieved before the Brandenburg Constitutional Court, see VfgBbg 9/19, VfgBbg 55/ 19, 23 October 2020. 49 See R Rubio-Marı´n, ‘A New European Parity-Democracy Sex Equality Model and Why It Won’t Fly in the US’ (2012) 60(1) American Journal of Comparative Law 99, 118-124. 382 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 (which were contemplated already under its 1950 Constitution), demanding no less than one third of those seats to be allocated for women. In Latin America, where ten countries now include them, some constitutions were also among the first to adopt provisions to ensure the equality of women in public office and representative positions, as was the case of Colombia (1991, article 40) and Argentina (1994, article 37). And in Africa, where several quotas had already been introduced after independence in the form of reserved seats, many of the constitutions approved in the new century also contain quota provisions, such as the 2003 Rwandan Constitution, which reserves 30 percent of public office seats for women. Thus, in essence, we see turn-of-the-century constitutionalism accompanying and facilitating this worldwide phenomenon of gender quotas whether through reserved seats or enabling provisions and, in this way, assisting the process of affirmation of women’s citizenship and a new understanding of democratic legitimacy striving for gender parity. Women’s involvement in constitution-making in more than token numbers and reflecting a broader trend of participatory constitutionalism since the 1990s represents another key milestone in the gradual process of affirmation of women’s citizenship. Indeed, over the last decades, there has been a call for popular, civic, or democratic constitution-making processes, seeking to rescue constitutionalism from the domain of ‘high politics’ and to give ordinary citizens the opportunity to participate in the drafting of their constitution. 50 Women have been a part of this, and for the last two or three decades, there has been a growing presence of women in constitution-making bodies, though parity seems still a distant goal with the exception of Chile which is bound to be the first country in the world to have a perfectly paritary constituent assembly. Until the 1990s, women’s representation in these bodies worldwide rarely went beyond 5 or 10 percent, whereas an analysis of twenty constitutional reform processes between 1990 and 2015 reveals that, on average, 19 percent of members of formal constitutional reform bodies were women. 51 This increase in women’s presence reflects the natural rise of women in parliaments and in the legal profession but also women’s growing mobilisation to demand 50 See P Blokker, ‘Constitutional Reform in Europe and Recourse to the People’ in X Contiades and A Fotiadou (eds), Participatory Constitutional Change: The People as Amenders of the Constitution (Routledge 2016) 40. 51 See A Dobrowolsky and others, ‘Introduction: Women, New Politics and Constitutional Change’ in A Dobrowolsky and V Hart (eds), Women Making Constitutions: New Politics and Comparative Perspectives (Palgrave Macmillan 2004) 2. 383On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 their seat at the table, especially in post-conflict scenarios which often offer windows of opportunity. In some occasions, the increase of women in representative constituent bodies has in turn been facilitated by the prior adoption of electoral gender quotas. Examples include the case of Uganda during the process leading to the 1995 Constitution and the Bolivian constitution-making process that began in 2005, whereby constituents were elected through zippered party lists seeking parity. Some of the most recent participatory constitution-making experiments, such as those in Iceland and Ireland, have sought a more direct involvement of ordinary citizens in constitution-drafting bodies, and these experiences have led to women coming ever closer to true participatory parity. 52 But women joining constitution-making is also occurring through the court system, especially relevant for the purpose of constitutional interpretation of constitutional provisions which are necessarily broadly framed. 53 Indeed, since the turn of the century, gender-balanced participation (that is to say, not more than a 40–60 percent unbalance) is becoming a reality in a still small but growing number of constitutional courts (such as the current German and Canadian Constitutional Courts), and we tend to see a low but increasing number of countries with women in the role of Chief Justice for the first time in their courts’ history 54 as well as the first self-identified lesbian justices. 55 Although the slow but steady progress in women’s inclusion in constitutional courts and constituent official bodies is to be celebrated, an overall assessment shows that, to this day, most of women’s participation in constitution-making has been channelled through civil society 52 See H Landemore, ‘When Public Participation Matters: The 2010–2013 Icelandic Constitutional Process’ (2020) 18(1) International Journal of Constitutional Law 179; S Suteu, ‘Women and Participatory Constitution-Making’ in Irving (n 47) 28. 53 See B Baines, ‘Women Judges on Constitutional Courts: Why Not Nine Women?’ in Irving (n 47) 299. 54 This was the case of Justice McLachlin in Canada (2000-17); Lady Hale in the United Kingdom (2017-2020); Justice Susan Denham in Ireland (2011-2017) and Justice Gloria Stella Ortiz Delgado in Colombia since 2019. 55 Justice Susanne Baer in Germany, Justice Virginia Bell of the High Court of Australia, and Maite Oronoz Rodrı´guez, president of the Supreme Court of Puerto Rico. There is a rich literature which discusses the difference that having women on the bench makes. Heather Elliot summarizes much of this early literature in ‘The Difference Women Judges Make: Stare Decisis, Norms of Collegiality, and Feminine Jurisprudence—A Research Proposal’ (2001) 16(1) Wisconsin Women’s Law Journal 41. For more recent sources see also E Rackley, Women, Judging and the Judiciary (Routledge 2013). 384 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 initiatives. 56 Certainly, examples abound of organisations and platforms created by women’s groups all over the world to participate in realising constitutional aspirations. One of the most well-known and pioneering experiences in this regard is that of South Africa, where a Women’s National Coalition was created in 1992 by the women leaders of the liberation struggle, including a wide variety of organisations, to intervene in the male-dominated processes which were leading up to the writing of a constitution for a democratic South Africa. But even though South Africa is generally recognised as the first example of full constitution-making in which women’s interests were asserted throughout, South African women had some partial precedents to follow. 57 From the early 1980s and throughout the 1990s, in Canada, the women’s movement in general and the Aboriginal women’s movement in particular were heavily involved in the constitutional struggles. 58 In1986,inNicaragua,hundreds of women took to the streets to protest against the sexist language of the first constitutional draft. 59 In Colombia, the women’s movement formed a network around the constituent assembly (Red Nacional Mujer y Constituyente, or Women and Constituent Assembly National Network), which included 75 organisations around the country and garnered 15,000 signatures in support of its constitutional proposals. 60 The trend has continued in the new century all around the world. In 2011, a coalition of NGOs (calling itself the ‘Feminist Spring for Democracy and Equality’) was created in Morocco out of more than forty women’s associations under the strong leadership of secularist groups, with the aim of constitutionalising equality between men and women. 61 56 R Rubio-Marı´n, ‘Women and Participatory Constitutionalism’ (2020) 18(1) International Journal of Constitutional Law 233; R Rubio-Marı´n and H Irving (eds), Women as Constitution-Makers: Case Studies from the New Democratic Era (Cambridge University Press 2019). 57 C Albertyn, ‘Women and Constitution-Making in South Africa’ in Irving (n 47) 47. 58 See KA Froc, ‘Is Originalism Bad for Women? The Curious Case of Canada’s “Equal Rights Amendment”’ (2015) 19(2) Review of Constitutional Studies 237. See also A Dobrowolsky, The Politics of Pragmatism: Women, Representation and Constitutionalism in Canada (Oxford University Press 2000). 59 MI Morgan, ‘Founding Mothers: Women’s Voices and Stories in the 1987 Nicaraguan Constitution’ (1990) 70(1) Boston University Law Review 1, 52. 60 See J Lemaitre, ‘Feminist Legalism: Colombian Constitution-Making in the 1990s,’ in Rubio-Marı´n and Irving (n 56) 234, 259-60; MI Morgan, ‘Emancipatory Equality: Gender Jurisprudence under the Colombian Constitution’ in Baines and Rubio-Marı´n (n 29) 75-99. 61 See S Borrillo, ‘Women’s Movements and the Recognition of Gender Equality in the Constitution-Making Process in Morocco and Tunisia (2011–2014)’ in Rubio- Marı´n and Irving (n 56) 48. 385On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 merely aspirational nature. But the truth is that one can also find at least some recent expressions of transformative gender constitutionalism in more consolidated constitutional democracies, including as pertains the need to better recognise the central importance of care and of its egalitarian distribution. In the US, despite having failed to ratify it a generation ago, many are pushing for a federal Equal Rights Amendment to be inserted in the US Constitution. This renewed effort has been fuelled by women’s continued disadvantages, the unfair treatment of mothers and pregnant women in the workplace, women’s underrepresentation in decisionmaking and leadership positions, and the insufficient responses to violence against women. A brand-new ERA, it is argued, should provide the ‘basis for a new infrastructure of social reproduction in our postindustrial societies’ by enabling and compelling governmental action. 79 Other consolidated democracies have recently moved into action. This is the highly visible and celebrated case of Ireland’s constitutional gender revolution. After two referenda, one in 2015 and another in 2018, the country has passed constitutional amendments to its old 1937 Constitution to recognise same-sex marriage and legalise abortion. Recently, fascinating debates also took place with regard to the destiny of article 41.2 of the Constitution, probably the best explicit expression of the dated breadwinner family model in the Western world. 80 While many have suggested that this provision endorsing gender stereotypes should be entirely removed, a citizens’ Constitutional Convention, held in 2013, overwhelmingly supported to keep it so as to make visible the central importance of care for social reproduction, yet rendering it gender neutral and including forms of care beyond the home. It 79 See JC Suk, An Equal Rights Amendment for the Twenty-First Century: Bringing Global Constitutionalism Home (2017) 28(2) Yale JL & Feminism 381. Other critical voices, such as Siegel’s, are urging us not to wait for the constitutional amendment to pass. Instead, on the occasion of the women’s suffrage centennial, she endorses a reconstructed interpretation of Sections One and Five of the Fourteenth Amendment, inspired by the Nineteenth Amendment’s underlying promise of an ever more democratic family, and suggests that matters of contraception, pregnancy, and violence against women should be constitutionally approached through tests that ultimately ask the question of whether the treatment at stake entrenches men’s household headship foundational model or, instead, advances toward securing women’s independent citizenship. See RB Siegel, ‘The Pregnant Citizen, from Suffrage to the Present’ in G Paras, ‘Nineteenth Amendment Edition’ (2020) 108 The Georgetown Law Journal 167. 80 Article 41.2 of the Irish Constitution provides that the ‘State recognizes that by her life within the home, woman gives the State a support without which the common good cannot be achieved ... [and shall therefore] endeavor to ensure that mothers shall not be obliged by economic necessity to engage in labor to the neglect of their duties in the home’. 392 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 was decided that further review would take place to discuss this again. 81 Maybe less visible to the public eye are the hermeneutic court-led changes supporting transformative constitutionalism in other parts of Europe in an attempt to go beyond the traditional accommodationist European model and to ensure both the possibility of work/family balance for all and the sharing of care responsibilities between men and women. We could, by way of example, mention jurisprudential changes in German and Italian constitutionalism. 82 In Germany, for years, the Federal Constitutional Court had called on state neutrality with respect to the internal organization of families (under the family provision of article 6.1 of the Basic Law whereby ‘marriage and the family are under the special protection of the state’) to sustain gender neutral legislation (including, for instance, in the realm of taxation), which in fact favoured the breadwinner family model. It now relies on the constitutional duty imposed on the legislator by article 3.2 of the Basic Law to enforce gender equality in social reality (a provision inserted by way of amendment in 1994) and to defend from constitutional challenges the parental leaves legislation schemes adopted to promote the equal sharing of family and care responsibilities between the spouses. In Italy, since the early 1990s, the Italian Constitutional Court’s case law has supported the extension of legislative maternity leaves to fathers, albeit so far only in subsidiary terms (relying on a joint reading of the equality principle in article 3 of the Constitution and the recognition of spousal equality in marriage in article 29). The full equalization of paternity and maternity leaves (under a system of equal and non-transferable leaves) has not been a constitutional victory in Italy or elsewhere. The lumping together of the mother’s biological needs with notions of normative motherhood feeding ideas about the ‘special tie between mother and child’—ideas channelled through conceptions of the child’s best interest—have so far prevailed. Yet litigation is coming to the fore and dissenting voices are backing the need for change. 83 Arguably, the change would require the prior re-evaluation of care and nurturing, from which traditional models of masculinity have deprived men and which have, at best, stopped being primarily conceptualised and treated, if not totally ignored, as burdens and employment-related impediments. It would, in other words, require 81 See Suteu (n 52) 31. 82 See Rubio-Marı´n (n 37) 807-815 (citing pertinent case law). 83 See dissenting opinion by Judge Maria Luisa Balaguer Callejo´n in the Spanish Constitutional Court’s decision STC, 29 October 2018 (No 117/2018) (Spain). 393On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 the ‘emerging model’ of ‘committed fatherhood’ characterised by the ‘elements of responsibility, emotional nurturing, physical accessibility and material support’ which we saw Justice Clara Ine´s Vargas Herna´ndez allude to, to become the norm, rather than the exception. 84 6. Gender Equality Backlash: Back to the Traditional Family Order? If consolidated, this subversion of the gender order which was inherent to the state order built in and through modern constitutionalism through participatory and gender transformative constitutionalism would be quite revolutionary. The history of constitutionalism has witnessed other major disestablishment processes, including those challenging the power of the monarchy or the church, so the time might have come to fully address the remains of patriarchy. Maybe because of this, one should not expect this change to proceed without major resistance. And major resistance is indeed what we have been witnessing, especially over the last decade, coming from neoconservative reactions and religiously ‘anti-gender movements’. The targets of anti-gender movements have included gender and sexually diverse persons’ rights as well as reproductive rights (such as contraception, abortion, and reproductive technologies) but also sex and gender education in schools and gender studies as an academic discipline. More recently, and to a lesser extent, new conquered trans rights have also become the object of attack, even in the context of opposition against other agendas which are seen as deeply interconnected. 85 These anti-gender equality movements are part of an increasingly global transnational phenomenon which has its roots in the late 1990s in a reaction from the Vatican, American conservative Christians, and other states of Christian and Muslim tradition to the International 84 Corte Constitucional [CC] [Constitutional Court], abril 1, 2003, Sentencia C- 273-03, (Colom) para 5. 85 See D Paternotte and R Kuhar, ‘The Anti-gender Movement in Comparative Perspective’ in R Kuhar and D Paternotte (eds), Anti-gender Campaigns in Europe: Mobilizing Against Equality (Rowman and Littlefield International 2017) 256. In Poland, the Church claimed that gender-based protections, which were increasing in importance after the ratification of the Istanbul Convention, would have led to homosexuality and transsexuality. See A Krizsa´n and RM Popa, ‘Contesting Gender Equality in Domestic-Violence Policy Debates: Comparing Three Countries in Central and Eastern Europe’ in M Verloo (ed), Varieties of Opposition to Gender Equality (Routledge 2018) 98. 394 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 Conference on Population and Development (Cairo, 1994) and the Fourth World Conference on Women (Beijing, 1995), conferences which foregrounded sexuality and reproductive rights as well as gender as a relevant category of analysis to explain violence against women as a form of gender subordination. In essence, the reaction consisted in strongly vindicating the sexual binary and the complementarity of the sexes in the name of the natural law of creation and as the essence of the institutions of marriage and family around which a healthy and sustainable society would be articulated. 86 The penetration of this construct in civil society is, however, a more recent phenomenon. It is in this last decade when the increasingly sophisticated organization of the movement is giving rise to a series of virulent battles, fuelled by an alliance between religious and far-right actors who, joining forces, see themselves as mobilising against what they contemptuously call ‘gender ideology’ and we could rather identify as the ‘dis-establish- ment of the traditional gender order’. Interesting (but maybe not surprising given what is at stake) is the fact that the movement’s tactics include three of constitutional dimension. These constitutional tactics are allowing the anti-gender equality movement to change its narratives to circumvent the traditional opposition between the religious and the secular, while taking advantage of democratic mechanisms and secular courts to frame its demands with reinforced legitimacy. Such constitutional tactics include more or less successful attempts at constitutional reforms to (re)entrench the traditional family order in the constitutions (constitutional entrenchment); constitutional litigation to invalidate or reduce previously granted rights in favour of women, and sexual and gender minorities (constitutional erosion); and constitutional co-option, which instead of seeking erosion through the abolition or reduction of the rights previously granted, seeks a gestalt change and co-opts the discourse of rights to preserve majority values from their perceived erosion. Since the last two rely on judicial activity they can certainly prosper with governments that, suspicious of what they denounce as “gender ideology”, pack the court system in ways they deem fit to offer resistance. Perhaps one of the earliest expressions of the strategy of constitutional erosion is found in the war against abortion rights in the United States. The fight is in fact much older because already in the years after 86 See MA Case, ‘After Gender the Destruction of Man—The Vatican’s Nightmare Vision of the “Gender Agenda” for Law’ (2011) 31(3) Pace Law Review 802. 395On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 Roe v Wade 87 , pro-life groups organised and in the 1970s and early 1980s concentrated their energies on the approval of a reform which would incorporate the life of the unborn child into the constitutional text, an initiative which was gradually abandoned in favour of a more incremental strategy of erosion through increased regulation. 88 This regulation, which, over time, has focused less and less on the protection of the foetus and more on the supposed protection of women against the ways in which they would be victims of their own decisions to have an abortion, has only accelerated since the 2010 elections which brought the Tea Party and other conservatives to power. Because ending abortion is a key priority for them, more restrictive laws were passed in 2011 than at any other time in US history. 89 If so far, the doctrinal core of Roe v Wade as nuanced by Planned Parenthood v Casey 90 has managed to survive, the recent swing of the Court to the right following the appointment of conservative justices in the Trump era only increases the hopes of pro-life advocates in spite of the prochoice position of the Biden administration. 91 Dynamics in Eastern Europe best allow us to exemplify the tactic of constitutional (re)-entrenchment through constitutional reforms seeking to reinforce the contours of the traditional family. Maybe the most widely shared expression of the fight against ‘gender ideology’ in the region so far has been the battle for the constitutional prohibition of same-sex marriage, although the falling from grace of the Istanbul 87 410 US 113 (1973). 88 See C Franklin, ‘The Story of Whole Woman’s Health v Hellerstedt and What it Means to Protect Women’ in M Murray, K Shaw, and RB Siegel (eds), Reproductive Rights and Justice Stories (Foundation Press 2019) 223-225. 89 These regulations include some that prohibit termination of pregnancy once a medically detectable foetal heartbeat occurs (usually as little as six weeks after conception), and many others that impose unwarranted and tremendous burdens seeking to drive away providers from the market. Behind such a legislative frenzy is often the influential pro-life group Americans United for Life (AUL), a group that has also supported the struggles against abortion in many other parts of the world, ibid. 90 505 US 833 (1992). 91 On May 17, 2021, the Supreme Court agreed to hear a challenge to a Mississippi law that would ban most abortions after fifteen weeks of pregnancy—hence before viability—in a case that therefore poses a direct attack on the constitutional right to abortion. In the meantime, Texas has approved fetal heartbeat legislation de facto banning abortion after 6 weeks of pregnancy and the Supreme Court has declined to intervene to halt it. The United States is not the only country where what seemed to be settled doctrine is coming under challenge. In Germany, too, the debate around abortion has been reignited by criminal convictions of doctors under attack by Evangelical Christians. The first convicted doctor filed a constitutional complaint in February 2021 (BVerfG, 2 BvR 390/21), so we may have a new abortion decision in the foreseeable future. 396 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 Convention in a growing number of countries is also a good testimony. 92 To understand the roots of the phenomenon, it must be taken into account that in post-communist regimes the Church has been identified as one of the victims of the communist regime and that, in some of the region’s countries, such as Poland or Croatia, the Church has traditionally been considered as the depository of national identity. For this reason, since the early 1990s, the Church has sought to restore its former role as a moral authority, either through civil society or directly through collaboration with the government, through ‘a process of retraditionalization of society’. 93 Furthermore, both in post-communist Europe and in Russia, it has been affirmed that gender ideologies represent a new form of totalitarianism equated with neo-Marxism, a form of imperialism of values promoted by international and regional organizations and academic elites, of an undemocratic nature, in a context which they describe as characterised by a growing Christianophobia. 94 In terms of constitutional dynamics, it is possible to distinguish countries, such as Hungary and Poland, where the ruling parties are part of the movement and take advantage of their parliamentary majorities (Hungary) or their increasingly sectarian courts (Poland) to advance this agenda, from others following a more bottom-up dynamic. Entrenchment through constitutional reform has been particularly visible in Hungary where the rise to power of Viktor Orba´n’s populist movement in 2010 provoked the rejection of a liberal cultural agenda taken up by much of civil society, giving the right-wing government Fidesz-KDNO the two-thirds majority it needed to change the constitution. The new Hungarian Fundamental Law (2011) proclaims the protection of human life from the moment of conception (article II); defines marriage as ‘the basis for the survival of the nation’ and as a 92 See Krizsa´n and Popa (n 85) 101-103, describing some of the common features of conservative opposition to gender violence legislation and actions, especially when framed in terms of gender equality. They include several claims of constitutional dimension, such as the alleged interference with family privacy, sex-based discrimination against men who are said to be victims of domestic violence just as often as women, the various due process rights of male defendants that might be undermined, and religious freedom. 93 Kuhar and Paternotte (n 85) 266. 94 By no means is the tactic of constitutional entrenchment to resist the challenge to the traditional family limited to the Christian world, however. In the Arab world it accounts for some of the dynamics that have unfolded over the last decade, when Islamist forces have been seeking the opportunity structures of democratisation and constitutional reform to try to reinforce the position of Shari’a law and the vision of complementarity between the sexes (and thus, traditional gender roles) that it is said to support. See, for Tunisia and Morocco, Borrillo (n 61) 31-80 and for Egypt, Tadros (n 63) 314-350. 397On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 conjugal union between a man and a woman (article L.1) and establishes that ‘Hungary will encourage the commitment to have children’ (article L.2). And when in 2012, based in part on the case law of the European Court of Human Rights, the Hungarian Constitutional Court struck down legislation supporting a narrow conception of the family (defined in essence as a heterosexual nuclear marital family), 95 the majority forces in power responded in 2013 with an additional constitutional amendment that strengthened the privileged position of heterosexual and procreative families, taking advantage of the occasion to limit the powers of review of the constitutional court itself. Authoritarian governments of the region are not solely responsible for these processes. Conservative civil society forces, often fuelled by transnational references and support, have also been behind the multiple constitutional amendments aimed at resisting the constitutional dissolution of heterosexual marriage (in countries which, in addition to Hungary and Poland, include Bulgaria, Latvia, Moldova, Ukraine, Serbia, Montenegro, Croatia, Macedonia, Slovakia and Latvia), as well as behind several of the referendum campaigns which, with or without success, have accompanied such reform processes, including those in Croatia (2013), Slovakia (2014) and Romania (2018). These constitutional reforms are presented as (often pre-emptive) mechanisms of affirmation of the constitutional-national identity against the foreign influence of a Western Europe which, favouring homosexual marriage and oblivious to the natural mission of the gender binary, are dooming the traditional family and the human species. 96 Finally, the strategy of constitutional co-option finds expression in multiple jurisdictions on both sides of the Atlantic. It uses victimization narratives which describe an ‘oppressed majority’ allegedly threatened by a totalitarian ‘gender ideology’ and combines the subversion of the constitutional logic of fundamental rights with the supraordination of religious freedom or freedom of conscience, to limit or even de facto empty the rights and freedoms granted to women and sexual and gender minorities by claiming protection for conscientious objection. Thus, if originally the accommodation of religious exemptions had been able to serve to protect religious minorities (in the observance of their practices, food or dress standards), now religious and 95 See Alkotma´nybı´ro´sa´g (AB) [Constitutional Court], 43/2012. (XII. 20.), Magyar Ko¨zlo¨ny (MK) [Official Gazette of Hungary], 2012/82 (Hung). 96 See M Mos, ‘The Anticipatory Politics of Homophobia: Explaining Constitutional Bans on Same-Sex Marriage in Post-Communist Europe’ (2020) 36(3) East European Politics 395, 397-398. 398 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 ideological exemptions are affirmed as a way of preserving majority religious values to the detriment of the constitutional equality of women and sexual minorities. 97 Conscientious objections in relation to the right to abortion are the subject of constitutional litigation in several countries in Europe, the United States, and Latin America, where they increasingly seek to exempt not only the doctors and nurses directly involved in the abortion medical procedures but also, on the basis of complicity, the personnel indirectly and remotely involved (such as nurses who provide after-care to patients or doctors who refer their patients for abortion). 98 Objections are also raised against the sale and coverage by insurers of abortion and contraceptive methods, including emergency contraception. 99 And they have also become a key mode of 97 See D NeJaime and RB Siegel, ‘Conscience Wars in the Americas’ (2020) 5 Latin American Law Review 1-26. 98 In Europe, various constitutional and supreme courts have been confronted with conscientious objections to abortion. See, for instance, Greater Glasgow & Clyde Health Board v Doogan and Another [2014] UKSC 68 [33], [37], addressing the objections of health care professionals and employees to laws that require them to offer postprocedure care to patients. See also Judgment of the Polish Constitutional Tribunal of 7 October 2015, Case No K 12/14, striking down a Law on Medical Professions that failed to include doctors’ conscience-based exemptions for situations other than those of life-saving emergencies. Conscientious objections have also been raised in Latin America, sometimes with the explicit goal of limiting the scope of newly conquered rights in the abortion field. In 2017, Chile’s congress legalised abortion and also authorised conscience exemptions for physicians who objected to performing the procedure. See Law No 21.030, 27 September 2017, Diario Oficial [DO] (Chile). But soon the Constitutional Tribunal, in response to a challenge posed by conservative politicians who had long opposed abortion, ruled that the law’s limits on conscientious objection were unconstitutional and expanded exemptions from medical professionals performing the procedure to non-professionals who ‘also object, in conscience, to the procedures in which they must intervene’ as well as to institutions (Tribunal Constitucional [TC], Rol No 3729-(3751)-17 CPT-, 28 August 2017, 135). Defending this wide interpretation of conscientious objection see also, Tribunal Constitucional [TC], Rol No 5572-18, January 18, 2019. A similar strategy was tried in Colombia with less success. In 2006, the Constitutional Court struck down the total abortion ban and declared mandatory a set of exceptions to criminalisation (Corte Constitucional [CC] [Constitutional Court], 10 May 2006, Sentencia C-355 [Colom]). When confronted with the conscientious objection of doctors and judges interfering with access to abortion, the Colombian Constitutional Court imposed limits on conscientious objection with attention to the ways in which religious accommodation could impair the rights of groups historically subject to discrimination, expressing particular concern for fundamental constitutional rights ‘developed out of struggles led by sectors of society that have historically been discriminated against and whose achievements have generally not been well received by a wide array of social sectors that, shielded by the exercise of conscientious objection, attempt to project their private convictions in the public sphere’. See Corte Constitucional [CC] [Constitutional Court], 28 May 2009, Sentencia T-388 [Colom]). 99 See Burwell, Secretary of Health and Human Services, et al. v Hobby Lobby Stores, Inc., et al., 134 S. Ct. 2751 (2014), upholding the claims of for-profit employers challenging a federal health insurance requirement that they cover contraception through 399On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 objection to LGBT rights, mainly in relation to same-sex marriage and antidiscrimination policies. 100 ‘Invoking freedom of conscience, religious pluralism, and non-discrimination’, rather than religious doctrine itself, ‘opponents of women’s reproductive rights and LGBT equality seek more persuasive justification for their positions and partly disable liberals from objecting.’ 101 And although there may certainly be ways to address some conscientious objection claims while avoiding harm to third parties, the truth is that many courts are allowing too broad a reading of the right to conscientious objection in ways which practically empty out hard-won milestones in the process of disestablishment of traditional gender roles. 7. To Conclude Modern constitutionalism was superimposed on an extractive reproductive family structure which was naturalised and even romanticised and which affected women and different sets of women’s citizenship in distinctive ways. This explains why all too often attempts to advance toward the affirmation of equal citizenship for women and a more egalitarian family were first resisted as challenges to the very structure of the constitutional order and not simply celebrated as natural steps in the gradual conquest of the constitutional promise of coexistence among naturally free human beings. Even the conquest of female suffrage was constitutionally resisted and, when accepted, only threw a wrinkle in the gender order, for it did not question the underlying marital contract. Everywhere, the effects of granting women’s political rights were mitigated by the gender bias in women’s social citizenship in patriarchal welfare regimes, as well as by women’s belated liberation from the head and master laws. Yet, since the beginning of constitutionalism, women have engaged in various fights to turn their emancipatory claims into a constitutional reality, relying both on the constitutional interpretation of silent texts and on attempts to bring about constitutional norms. Throughout their various struggles, women have had to face the challenge of health insurance benefits offered to employees and Zubik v Burwell, 136 S. Ct. 1557 (2016), withholding a pharmacist’s refusal to sell emergency contraception. See also the Spanish Constitutional Court’s decision STC, July 7, 2015 (No 52/2015) (Spain). 100 See Bull v Hall [2013] UKSC 73 [34]; and Masterpiece Cakeshop, Ltd., et al. v Colorado Civil Rights Commission et al., 138 S. Ct. 1719, 1732 (2018). 101 NeJaime and Siegel (n 97) 11. 400 Ruth Rubio-Marı´n Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022 speaking with one voice, not only because of the difficulty of setting a priority order between the competing emancipatory causes of the time and the multiple and intersecting axes of oppression in their existence, but also because of the natural fear about the costs which the project of gender roles disestablishment could entail for women themselves and for some certainly more than for others. In crafting their constitutional demands, women have not respected the boundaries between the public as a domain of justice and the private as a domain of love following ‘the dictates of nature’. Instead, they have identified coercion, abuse and exploitation whenever and wherever they encountered it in their own lives, including, and often starting with, the domestic sphere be it their own or that of others. Originally built on the political exclusion of women, constitutionalism has only begun enabling and even facilitating women’s citizenship in the last quarter of its existence by turning gradually receptive to women’s claims for equal rights first and to equal participation later. Only in the current century, and thanks in part to women and gender dissidents joining the exercise of constitution-making, has it been possible to make significant progress in advancing the constitutional vision of a democratic and egalitarian family structure, both through the rejection of the heteronormative procreative family as the foundational cell of society and through the increasing, though still largely insufficient, valorisation of care, reproductive, and domestic work as a domain of citizenship. In the end, the constitutional challenge 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 with every major challenge to dominant norms justifying the legitimacy of power in the history of political thought, resistance to the disestablishment of patriarchy and its underlying gender order for the sake of a new conception of parity democracy seeking both “public” and “private” parity was to be expected. Thus, in recent years, we are indeed witnessing a slowing down and even some backlash, as well as a true wave of constitutional amendment initiatives (some pre-emptive, others reactive; some successful, others not so much) and other constitutional tactics seeking to restore the threatened traditional gender order. Yet women around the world have been fighting back and continue to do so. Their voices could be heard in the Women’s March in Washington, DC in January 2017; in the Madrid feminist strike in March 2019; in many localities in Poland since October 2020 to protest against a Constitutional Court decision dramatically restricting 401On Constitutionalism and Women’s Citizenship Downloaded from https://academic.oup.com/clp/article/74/1/361/6424135 by Universidad de Sevilla user on 23 August 2022