Tracy Higgins, a feminist and international human rights legal scholar, observed decades ago the parallels in the critiques made by anti-essentialist feminists against mainstream feminism to the critiques made by relativists to universalism.109 She notes that:
… anti-essentialist feminists have attempted to rethink both the various descriptions of gender oppression that have been offered and the assumption that gender oppression can be described meaningfully along a single axis. Instead, they have focused on local, contextualized problems of gender oppression. In this sense, anti-essentialism’s criticism of general accounts of women’s oppression parallels cultural relativism’s critique of universal theories of human rights. Like cultural relativism, feminist anti-essentialism seems to lead to the conclusion that gender inequality cannot be explained cross-culturally.110
These observations recognize the intersection between feminist legal theory and international human rights law and practice as I do here.
Professor Higgins further observed the challenges in resolving the debate between the universalists and relativists. She pointed out that:
Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women’s freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness.111
I think there may be a narrow road between the two broad paths she lays out between the rejection of a common notion of gender equality and the rejection of all “cultural practices.”
While those feminist debates in international human rights are relevant here, I am not asking the same question they struggled with. Those conversations were about whether or not a seemingly sexist practice should be permitted in a country because it is part of the religion or culture of the country in which it is practiced. Rather, I am asking whether a practice that is considered to be oppressive in one country context should be automatically deemed oppressive in another country context. For example, the question I am wrestling with is whether the veil is oppressive to women in France or Belgium where it has not been traditionally worn and is worn by a relative few number of women. I am not asking whether or not the veil is oppressive to women in Iran where it is required by law or in a country where social norms dictate it. Few have seen these as separate questions, and I argue that they are not only separate questions but that they should be analyzed differently.
Of course whether the veil is oppressive in countries where it is mandatory or dictated by social custom is not totally unrelated to the question about whether the veil is oppressive to women who wear it in France. In order to understand whether or not a cross-border practice is harmful for women’s rights in the country of destination of a migrant, we must understand the reasons, scope, and consequences of the practice in the country of origin of that migrant. In this process of comparison, we may learn that the motives, consequences, and impact of the practice are entirely different in the country of origin of the immigrant than in the country of destination. We may also learn that they are similar. In its current state, international human rights practice and theory has left little room to consider whether or not cross-border practices change meaning when transported to another context—such that a practice can simultaneously be seen to violate human rights in one country context but not in another. Questions about these narrow sets of practices (i.e., brought from one country to another by migrants) get swallowed up by the larger debate about whether all human rights are universal or culturally relative.
Universality has largely won the day in international human rights law and practice. Today, international human rights organizations are reluctant to deviate from the principle of universality because (among other things) it gives their positions great moral authority. They may also feel uncomfortable taking conflicting positions on the same practice (e.g., that veil bans are appropriate in one country, but not in another). Scholars and advocates resist deviating from universality as it implies the acceptance of cultural relativism, the only other alternative currently available. Thus, the thrust of international human rights discourse also leaves little room for finding that a practice is a human rights violation in one context, but not in another. In the next section, I outline a context-based feminist proposal to evaluate whether or not a practice that raises women’s rights concerns in one context also contravenes women’s rights when it is practiced in another country context.
Transnational Feminist Legal Approach to Cross-Border Practices
As Professors Bowman and Schneider explain, there is a deep engagement and positive feedback between feminist legal theory and lawmaking. Feminist legal theory was used to push for changes in laws to guarantee equality in the 1960s and beyond.112 For example, feminist arguments that pregnancy was an issue of gender equality led to new legislation known as the Pregnancy Discrimination Act.113 Litigation strategies and advocacy were also reflected in the work of feminist legal theorists. Catharine MacKinnon’s book, Sexual Harassment of Working Women, reiterates the legal theories about the harms of sexual harassment that had already been litigated by feminist lawyers.114
Liberal equality theory, dominance theory, and cultural feminism each had an important role in addressing and changing different types of discriminatory laws or in pushing for the enactment of laws to address women’s inequality where there were none before. Each of the strands of legal feminist theory was used to evaluate a law for the purpose of determining whether or not it promotes women’s position in relation to men’s position. While theorists might disagree about whether or not a law promotes women’s equality based on their perspective, their categories of analysis were typically men and women. Anti-essentialist feminist theorists soon pointed out that “women” as a category was too broad in conducting this type of legal analysis—it included women of many races, sexualities, and so on. Consequently, they argued that just because a law was thought to enhance equality for one group did not mean it would have that same impact on another group. I believe that to assume that similar policies would promote equality for women who are living in multiple country contexts is also to essentialize women.
Since the evolution of American feminist legal theory, the foreign-born population in the United States has grown significantly from fewer than 4.7% in 1970 to 13.1% in 2013.115 Migration is on the rise globally as well. Three times the number of people live outside their birth country in 2016 than did in 1960.116 Migrant-receiving countries are increasingly adopting regulations to address the behavior (or perceived behavior in the case of sex selection) of women immigrants and their progeny. Often knowledge of the practice as it is carried out in a foreign country informs policy decisions in migrant-receiving countries. But this knowledge is far from complete—it is packaged into sound bites sometimes filtered through stereotypes about the power dynamics between men and women in some foreign countries.
Feminist legal theory was created and evolved in the context of the United States. Liberal feminists pushed for facially gender-neutral laws and thought they would serve to equalize women’s position vis-à-vis men’s. Dominance feminism, on the other hand, is highly sensitive to the impact of a particular law in the context where it is adopted. Yet its methodology still calls for examining only the context where the law was adopted. Similarly, law and society scholars have long argued that context is important in understanding how law has developed, how it is enforced, and how it changes.117 But their focus generally was also on the context where the law was proposed to be adopted and not on any other context.
Cross-border practices push us to examine contexts beyond the one where a law is being proposed to be adopted. In understanding cross-border practices, I argue we must gain a better understanding of the country context where the practices originate through in-depth empirical analysis. It is only through broadening our gaze to these multiple contexts that we can