The Gendering of Human Rights: A Brief History and Today’s Challenges

These are hard times for human rights—whether thought of as ethical visions, international legal norms and protections, or transnational advocacy movements. Recently, the Trump Administration—in no way committed to expansive rights norms or multilateral cooperation—launched an initiative to re-define human rights’ principles for today’s world. It instructed Secretary of State Mike Pompeo to establish a Commission on Unalienable Rights to provide “fresh thinking” on a common definition of human rights moving forward.

On the surface, the move might appear to defend rights but it actually represents a barely veiled effort to curtail what legitimately has been seen to count as human rights over the past half-century—it is not the first such attack and probably won’t be the last, but it is serious. And it led to a huge outcry among academics, legal scholars, ethicists, and activists around the United States. Ultimately, 450 individuals and organizations wrote to protest the motives behind the Commission’s creation and its appointed leadership. You can find more information on the controversy here.

What are human rights, why are they controversial, and why does their definition matter today?[1] After setting the stage briefly, I will address these issues through a targeted examination of the gendering of human rights. Gender is a particularly useful case study of rights history because when it emerged as a new category of protections (notably, in the early1990s) it opened up a serious fault line in global politics—but one confounding assumptions about differences between developed or underdeveloped nations or between the global south and north, and the regions in-between. Tensions over gender divide societies in complex and unexpected ways. This is readily seen when you think about the United States and the contemporary attacks on women’s reproductive rights, gay marriage, and sexual identities. The human rights gender divide, present throughout the globe, reveals an important though often overlooked “truth” in contemporary discussions—it is as characteristic of debates in the United States as elsewhere. It demonstrates that human rights principles (and their challenges) are not just about or for “others”—for those outside our borders—but equally relevant to the quality of our collective lives at home.

Human Rights 1945-1949

Human rights were proclaimed officially in the UN Charter in 1945 and the Universal Declaration of Human Rights (UDHR) in 1949 as part of global restructuring after the horrors and devastations of the Second World War. While their many principles and visions extend back in time in various historically specific permutations, they came together in a new matrix when human rights became central to the purposes of international collective security and cooperation (see the Charter’s preamble).

Human Rights institutions, oversight bodies, and law-making powers were inserted into the heart of the United Nations, linking their fate inexorably with that of global governance. The 1949 Declaration was a wide ranging, largely aspirational proclamation—drawing on many traditions, from natural rights and democratic citizenship ideals to the decolonization principles of self-determination and racial equality to the diverse women’s rights and emancipation traditions. Regarded at the time as the self-evident culmination of historical developments, the document turned out to be only the first word. Its principles have been deepened, modified, corrected, and challenged ever since—mainly through international codification initiatives that responded to grassroots mobilizations by populations able to bring to international attention the devastating violence and injustices that constrain their lives.[2] This process, however, is a complex and uneven one, drawing attention to limitations in human rights advocacy and to the question of who can speak and whose voices are heard in the international community.

Gender in Human Rights

In the initial formulation of universal rights principles and protections in the 1940s, gender was nowhere to be found as word or concept. This is perhaps not surprising but worth pointing out. Gender as an analytical lens and methodological approach is a new critical intellectual tool. (I am not speaking here of a description of the lived relational system). That might be hard to imagine. It is the same, of course, with academic history. And inserting gender into human rights occurred at the same time that gender became a powerful analytical tool for history-writing—in both cases not adding and stirring but shaking up the fields.

Importantly, various women’s groups were deeply involved in the 1940s agenda, laying the foundation for the legal incorporation of human rights into global governance. There were many key figures beyond Eleanor Roosevelt, who, as is well-known, was the chairman—she insisted on the title—heading the UN Human Rights Commission (HRC) which oversaw the drafting of the UDHR. Prominent also were Hansa Mehta, South Asian medical doctor and freedom fighter, and the Danish representative Bodil Begtrup, who successfully lobbied for a Commission on the Status of Women (CSW), separate and independent of the HRC—and run by women. And many more.

These delegates insured that the drafting process would reflect women perspectives—”no more ‘rights of man’ tradition” was their slogan! Because of women’s positioning and mobilization, these international activists inserted what is known as the “sex equality clause” into the Charter and put gender neutral language into the Declaration (“everyone” and “every person” is guaranteed rights rather than using the presumed generic universal “he,” “him,” or “his”). The Charter also defined four key social variables that at the time were assumed to constitute human diversity; these needed to be safeguarded to assure human dignity, the ultimate aim of human rights protections. The document, thus, explicitly prohibited discrimination on the basis of religion and language—drawing on the older nineteenth century criteria that Great Powers had used to carve peoples into bordered nations; and also race (reflecting the horrors of the immediate Nazi past and rejection of colonial hierarchies) and sex (reflecting the work of the transnational women’s movements starting in the middle of the nineteenth century).

For the first thirty years of UN operations, sex equality was the lodestar—and the CSW and General Assembly codified new international laws on that basis, affirming, among others, political rights for women (1952), the nationality of married women (1957), and consent to and minimum age of marriage (1962). The principle of formal equality in effect measures women’s lives by a male standard—it is designed to bring women’s life experiences up to men’s. But the criteria, as earlier socialist women and feminist labor activists knew well, leaves considerable social life unexamined. It essentially rests on sameness.

However, for postwar activists on the ground (whether women involved in decolonization or new nation-building struggles or among emerging second wave feminists in the West[3]) equality increasingly proved to be an insufficient guide for change.  This became more and more clear to diverse global activists because of the UN’s role in fact finding and gathering knowledge. Starting in the 1960s and pushed by leaders and activists in new nations, the UN promoted economic development plans and programs. Implementation required knowledge of rural economics, work and family relationships, land-holding patterns, and soil and crop cycles. So, the UN sent out hundreds of questionnaires and published their findings, which were disquieting to say the least. I personally remember the many highly publicized newspaper articles from UN surveys appearing in US newspapers starting in the 1970s that captured the facts on the ground needed to formulate viable development programs. These surveys, however, revealed unsettling facts: pervasive violence against women in the everyday; the feminization of poverty; disproportionate disadvantages women faced in work, owning property, political rights and the like. They drew attention to pervasive patterns of disadvantage affecting women disproportionately.

Through these channels of knowledge that funneled upwards beginning in the 1970s, the activists increasingly came to understand the (gender) biases in UN operations: only certain categories of violations counted as international violations (the types of human crises that had reached international attention)—products of an abusive state, committed by state actors, and in the public area. These were, to be sure, grave offenses: the Apartheid system of legal segregation in South and southern Africa; the cause of Soviet dissidents deprived of their free speech, religious practices and geographical mobility; and the civilian groups who were targeted and disappeared in state-sponsored terror campaigns in the “dirty wars” of the late 1960s and 1970s. These urgent crises were the first human rights transnational causes that garnered international attention. But so many other “wrongs” were left unexamined.  Amnesty International, at the outset of its prisoners of conscience letter-writing campaigns (protesting incarceration of dissidents who were merely speaking out) did not consider feminists valid dissidents. The advocacy group did not regard feminism as a legitimate cause worthy of human rights attention. In the Soviet bloc system, independent feminist movements could not operate freely, and outspoken feminists were silenced and imprisoned.

Gender which, as concept, began to swirl around the academy in newly emerging women’s studies programs in the West by the later 1970s and simultaneously in many women’s research institutes in developing countries, offered an alternative understanding to “sex equality.” It began to impact advocacy in UN human rights circles—gender presumed difference rather than sameness, drawing attention to gender-specific violations (neglected in the world of formal equality) that had not been seen as valid human rights abuses, including those committed in the private sphere, hitherto outside the legitimate purview of international human rights attention. Human rights discourse and action began to erode the (artificial) divisions between public and private life. In this way, the domestic family as well as long-standing cultural traditions and customs previously unexamined and exempted from international scrutiny were drawn into human rights debates.

This profound conceptual shift had many salutary impacts: it made rape and violence against women in war an international crime (not an outrage against family honor as found in previous formulations of international law); raised urgent questions about systemic domestic violence when the state was unable or unwilling to provide protection; drew new attention to customary practices such as genital cutting, long a taboo subject in UN circles; promoted women’s reproductive rights as a fundamental human right; and defended individual sexual self-determination. Under the slogan “women’s rights as human rights,” it accommodated difference while remaining true to the original commitment to human equality. For the first time in the human rights era, it drew the family and traditional cultures and customs into the human rights orbit of concern, monitoring, and legal interventions.  And the gender turn highlighted the continued biases in the implementation of human rights as laws, principles, and norms.

BUT…it also led to serious and sustained global backlash starting in the mid 1990s—turning gender, as I noted at the outset of this essay, into a major fault line in global societies. The critiques are raised on many fronts and for many reasons: those of cultural autonomy, religious integrity, and state sovereignty, to mention the most important theoretical and practical objections mounted against the principle of universal human rights deepened by the gender perspective.

The Immediate Danger of Pompeo’s Redefinition

Concern with “gender trouble” is at the center of Trump’s redefinition of rights principles. Pompeo, in effect, proposes to return to the earlier natural rights traditions linking citizenship to rights and insuring individual (notably religious) liberty and political freedoms, narrowly understood.

The implications are dire for one of the grave crises now at our borders: efforts by migrants and refugees to obtain asylum in the United States. Not surprisingly, the older US asylum policies had limited such claims to credible fears of political or religious persecution but not economic distress, poverty or violence. Thus, for example, this country welcomed Cuban refugees fleeing the Castro regime in the 1980s but not those fleeing poverty in, say, Haiti.

But in the last decade or two, a number of landmark legal cases in the United States pushed by migrant women fleeing violence abroad, and aided by local feminist lawyers, began to broaden definitions of the political. In 1996 in Matter of Kasinga,[4] the Board of Immigration Appeals provided asylum to Falziya Kassinga (her name was misspelled in the court case) who fled Togo to escape female genital mutilation and sought asylum in the United States. Her lawyers successfully argued that she met the existing criteria for asylum as a member of a “particular social group” (a gender) in danger of persecution and could not be returned to her country. “It was the first time a US court ruled that a woman who faced fundamental violation of her bodily integrity could be recognized as a refugee.”[5] A similar decision was reached in the case of Rodi Alvarado, a Guatemalan woman who fled domestic abuse by her husband, when the police dropped the case claiming it was merely a “domestic matter.” And there have been other similar legal victories. Each case, however, was decided separately so the US courts did not establish a wider claim. The newly proposed redefinition of rights will stifle even these modest gains.

Final Thoughts

There are no guarantees in rights history. Rights are won and they can also be lost, as the challenges to women’s reproductive rights in the US and abroad testify. But rights history is intricately bound up with ordinary people’s extraordinary actions for change. Thus, I’d like to conclude with a quote from Patsy Ruth Oliver, Texas environmentalist and local activist. As she put it in an interview in the late 1990s:  

So many people don’t think one person can make a difference. But really it has to start someplace. So let it start with me.[6]


Notes

[1] I seek here to offer a general assessment of some aspects of human rights history, which is a complicated historical theme with a vast scholarly literature. I have tried to make my remarks, short, precise and accessible and—at the same time—capture some of the interpretive nuances. For further reading I recommend several overview studies. Paul Gordon Lauren, The Evolution of International Human Rights: Visions Seen, Philadelphia: University of Pennsylvania Press, 1998; Jean H. Quataert, Advocating Dignity: Human Rights Mobilizations in Global Politics, Philadelphia: University of Pennsylvania Press, 2009; Niamh Reilly, Women’s Human Rights: Seeking Gender Justice in a Globalizing Age, Cambridge, U.K., Polity Press, 2009; Sally Engel Merry, Human Rights and Gender Violence:  Translating International Law into Local Justice, Chicago, University of Chicago Press, 2006 and Devaki Jain, Women, Development, and the UN: A Sixty-Year Quest for Equality and Justice, Bloomington: Indiana University Press,2005.

[2] In global history, this dynamic perspective intertwining local and global purviews, is called “glocal.”

[3] I have left out the socialist world (in the post WWII tripartite division of the globe into three competing yet overlapping blocs), because the Soviet system rested on the conceit that socialism had fulfilled the promises of women’s emancipation.

[4] I assess the theme of gender and the courts in Advocating Dignity, pp. 178-81; I am here drawing on this section of my book.

[5] Quataert, Advocating Dignity, p. 179.

[6] Patsy Ruth Oliver, interview by Alexis Jetter in Alexis Jeter, Annelise Orleck, Diane Taylor, eds., The Politics of Motherhood:  Activist Voices from Left to Right, Hannover, NH: University Press of New England, 1997, p. 52.

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