In this week’s episode, we talk to Ruth Rubio, Professor in the School of Transnational Governance at the European University Institute, about her book, Global Gender Constitutionalism and Women’s Citizenship: A Struggle for Transformative Inclusion, published by Cambridge University Press (ISBN: 9781316630303).

• Executive Producer: Meghan Campbell
• Producer: Sophie Smith
• Editor: Sophie Smith
• Host: Louise McCormack
• Music: Rosemary Allmann
• Show notes: Sarah Dobbie

TRANSCRIPT: Dr Ruth Rubio Marín: Gendered Constitutionalism  

Louise McCormack (0:01) You’re listening to RightsUp, a podcast from the Oxford Human Rights Hub. I’m Louise McCormack and I’m a Podcaster here at the Hub. In today’s episode we talk to Ruth Rubio, Professor in the School of Transnational Governance at the European University Institute, about her book, Global Gender Constitutionalism and Women’s Citizenship: A Struggle for Transformative Inclusion, published by Cambridge University Press.1  

Louise McCormack (0:25) Welcome, Ruth, and thank you for joining me today. 

Professor Rubio Marín (0:27) Well, thank you for having me. It’s a pleasure to be with you. 

Louise McCormack (0:30) So, to begin with, please could you explain what it means for constitutionalism to be “gendered”? 

Professor Rubio Marín (0:36) Well, in a way, if you think of what constitutions are or are meant to be, constitutions are meant to be these foundational norms, the structure of political communities. Now, what we have is that, historically, since the birth of modern constitutionalism — and I’m referring, of course, to written constitutionalism — we have these norms that are supposed to be the “mega norms”, the mega legal structures, drafted by men, interpreted by men on the assumption of a certain underlining gender order, that was a gendered order, meaning, you know, an order that relied on this idea of, you know, two separate spheres, with a public sphere being the male sphere and the private sphere being the female sphere. So, that was somehow entrenched in the constitutional structure from its inception. 

(1:39) So, I think the task of gendering constitutionalism is, first of all, one about coming to that realisation and to that understanding, that this wasn’t just some God-given document — this was man made and very much to reflect man’s views of what was really important in the community and, you know, according to a certain idea of justice. And then secondly, I would say problematising it, right, and asking ourselves the questions, you know, had women been the ones, you know, the constitutional— the founding mothers, would they have come up with the same idea of what really matters in a community, how it should be politically organised, etc etc? 

Louise McCormack (2:29) And so, why did you choose then to address gender constitutionalism and citizenship together in your book? 

Professor Rubio Marín (2:37) Well, you see, the notion of citizenship is a complex notion, it’s a rich notion, there’s various meanings to the notion of citizenship. And I guess, in a way, I wanted to play with all of them. Citizenship can mean equality of rights. That’s one notion of being a citizen — being part of a community where you enjoy an equal status as a citizen. But it also conveys this notion of participation in the community — not just rights, but actually participation. 

(3:09) And so, the book asks itself a question — to what extent have constitutions, since their inception and throughout history, either facilitated or impeded women’s citizenship, in the double meaning, i.e. women’s access to equal rights, but also women’s access to equal participation? And that will very much depend on what phase and what stage of constitutionalism we’re talking about. You know, the foundational constitutional order, when constitutions were first crafted, is not the same as contemporary constitutionalism. It will also depend on what notion of equality the constitution embodies — a formal notion of equality that just satisfies itself with equal rights, or some more substantive notion of equality that looks for people being actually able to participate equally and hence removing the obstacles to participation. 

(4:11) And then the last, I think, nuance that I wanted to incorporate is that women have been participating in their communities always, but there is a question of what forms of participation we consider to be citizenship-like forms of participation. When you’re voting, no one will doubt that you’re acting as a citizen. Are you being seen as acting as a “citizen” when you’re mothering or when you’re caring? 

(4:42) So, it’s a question of, you know, to what extent women have been able or facilitated or impeded in accessing rights, in being able to participate, but also have women’s forms of participation been reflected in our constitutions or not? 

Louise McCormack (5:01) I think you, kind of, touched a little bit then on the next question already, but what do you think constitutionalism brings to the overall struggle for women’s equality? And you’ve kind of noted that there’s different types of equality, but maybe you could just expand on that a bit further. 

Professor Rubio Marín (5:15) It really varies. I mean, I would say, one thing that is, for me, very clear is that there is a strong symbolic dimension, right? You know, if we do take constitutions to mean the framing norm, the way in which women’s needs, priorities are articulated, recognised, or hidden away, whether women take part or not in crafting that constitution, there’s a large symbolic dimension in terms of women’s political status in a community, linked to their ability to participate in the process of constitution-making, but also in, you know, whatever then the constitution addresses— decides to address or not address, either in its form of structuring powers or in the set of rights that it contains. 

(5:55) But then, of course, there’s huge variation, right, because constitutions don’t play the same symbolic role in every state. The US has a national identity that is deeply linked to its constitutional identity. I think the same probably applies to India or South Africa. So, they’re countries that lay a lot of their identities in their constitutions, and others, a bit less so.  

(6:35) But also there’s huge variation when it comes to constitutional architecture. There are countries that have judicial review of legislations and others don’t, and when they don’t, then it’s mostly a question of the extent to which the legislature feels bound by the constitutional values and rights. In terms of the countries that do have active constitutional courts or supreme courts enforcing constitutional provisions, even within those there’s huge variation. Rules of standing vary from country to country. Strategic litigation is used in some countries, but not in other countries. So, it really depends on each country, and on different moments of the constitutional history of that country. 

(7:24) Now, of course, if you think of some of [the] landmark decisions — Roe v Wade, or many constitutional decisions, including in South Africa, or Colombia, or the US, where same-sex marriage was first constitutionally achieved, or for instance, a landmark decision, Vishakha, in India, which was the decision that allowed women, you know, that basically filled up a gap, a legislative gap when it came to women’s harassment.2 And you know, you had a very proactive court saying, “Well, I don’t mind, you know, if the legislature hasn’t done its job. We have international norms, and we’re just going to de facto, in the meantime, provide some rules”. So, you always have these landmark cases, and behind many of those you have active civil society and women’s movements. And I think those are the cases where you show the potential of constitutionalism at its best, but it really varies from country to country. 

Louise McCormack (8:26) That kind of brings me on to my next question pretty nicely. Your book compares the constitutions of different places around the world, some of which you’ve already mentioned. Could you explain a bit further what jurisdictions are covered and why you selected these places, and then more broadly, why you took a comparative approach in this book? 

Professor Rubio Marín (8:43) So, the question of what jurisdictions to focus on is always a challenging question for comparatists, and the answer is always, you know—it’s always a complex answer, and it’s never [a] 100% true answer because, of course, we start from the jurisdictions that we’re most familiar with. We try to rationalise, and then, you know… But there was some that— of course, I started from jurisdictions that I was more familiar with, in Europe or the US, Canada. But also because I had this ambition of this, you know, reflecting, in a way, the evolution of constitutionalism throughout the world, I also felt that I had to, first of all, include those countries and regions that have been spearheading constitutionalism — so I couldn’t leave, you know, the US or Europe outside of the picture — but I found that it wasn’t fair to just focus, as so many of us have done, on Western Europe or the Western world, and the Anglo world, so I tried to make sure that there was enough regional diversity. 

(9:57) In parallel with the book, I embarked in two edited volumes on gender and constitutionalism in Latin America and in Asia, and those are going to see the light of the day in the next months. And that was very helpful for me because it gave me the opportunity to be expanding and challenging my preconceptions, identifying landmark cases in other jurisdictions to make sure that there was enough regional diversity. 

(10:24) And of course, then, as I said before, there are just countries that have been much more prolific than others, with much more active courts, you know, whether it be the South Korean court, or the US court, or the Canadian court, or you know, German court — there are courts that have been very, very active, and hence have had lots of cases and have played a very significant role within their political systems. You couldn’t leave those out. 

(10:51) That said, of course I left out a lot. I left out a lot because this was meant to be a book and not an encyclopaedia. I left out a lot because this summarises 10 or 15 years of research, but not 50. At some point, you need to say, “Okay, this is— this is it.” But I tried to be fair, especially because different countries have had transitions to democracy and to constitutionalism at different moments in history, and that had a huge bearing on the gender architecture of the various constitutions. And so it was important for me to start from the beginning, because I wanted to have this kind of historical approach and evolutionary approach, but at the same time, you know, to make sure that I encompass the whole range, you know, from the American and French Revolution to today. And so, you know, I had to juggle with all those variables, and I did my best, and I’m sure I failed, but I count on younger scholars and generations to continue this work. 

Louise McCormack (11:55) I guess, then, what do you view to be some of the challenges of developing and implementing gender-responsive constitutions? In addition to the ones you’ve already, kind of, touched on. 

Professor Rubio Marín (12:07) Well, you have to think that there’s various things at stake. The challenges can be many, but in essence, what you have to realise is that women have traditionally not been constitution-makers. So, first of all, you need to include women’s voices, right, whether it be in the official bodies that create constitutions, or in civil society when it discusses initiatives for constitutional amendment or reform or new constitutions. You have traditionally women’s voices being hugely under-represented. Actually, much less so in civil society. I was actually struck in my research by discovering that, although it’s true that up until, I would say, the last 20 years, women almost never surpassed [a] 15-20% threshold when it came to seats in official constitution-making bodies, women throughout history, when there— whenever there’s been a constitutional moment, have been organising, you know, socially, in civil society, protesting, trying to write letters, writing petitions, organising to draft what they thought would be their ideal constitution in the hope that they could then push their views and lobby to have some of their views reflected in the constitution that was being made. But you know, constitutions, after all, are high politics, so just having women and their voices is a challenge.  

(13:40) Then, of course, there’s the intersectionalities challenge, because to the extent that women have participated, in many cases it has privileged a certain class of women, right? The more educated, or those that have more legal expertise, or those that were closer to, you know, the capital of the city, where the main negotiations, debates were taking places, but, you know, rural women, or indigenous women, or poor women, you know, have never been really at the forefront of the conversation. So, inside of the group of women, you still have women who have had even less voices. 

(14:15) And then of course, you know, the challenge is one about convincing the community that women’s core interests deserve constitutional recognition. If you go to the early constitutions, and even today, reproductive autonomy doesn’t feature highly with our constitutions, and yet if you ask women, I mean, a lot hinges on that for us, really, in terms of shaping our life courses. So, you would imagine that, you know, a constitution that was built by women, you know, would have that, as well as other provisions inside. But that requires challenging this notion of [the] public-private division, and that hasn’t been easy. 

(14:57) I think a further challenge, and I will end with this, is, in a way, unfortunately, at least within liberal constitutionalism, which is, you know, the main form of constitutionalism that I focused on, the axis of social economic redistribution has been losing ground. And it’s not something that is gender-specific, but it has a huge gender impact. So, I cannot imagine any agenda that would be, you know, kind of transformative in terms of constitutionalism that would just limit itself to including certain autonomy or dignity or freedom rights for women. It would require, I think, tackling the question of social and economic inequality that is not specifically about women, but has obviously a huge gender impact. So, I think that that is challenging in the bigger sense, right, because it would require challenging not only what rights we include, but, you know, the extent to which our liberal paradigm is really sufficient to provide equal justice, which I think it isn’t. 

Louise McCormack (16:07) Absolutely. I think then the next question is, what role have human rights played in advancing gender constitutionalism? So, has the idea of gender constitutionalism expanded beyond a focus on rights? 

Professor Rubio Marín (16:19) A lot of the debate has been about gender and rights. I am very sympathetic to the criticism of rights and, you know, whether rights are enough, or whether rights are the right paradigm to think [in], whether rights talk has occupied the space of other emancipatory projects or arenas. I’m very empathetic to that. At the same time, there’s something really extremely powerful in the idea of being a right holder, and you know, possessing certain rights. 

(16:45) So, the gendering constitutionalism agenda has been one about gendering rights. I was just mentioning, you know, the right to reproductive autonomy. We could think of the right to care, or to be taken care of. That has not featured in, you know, our constitutions. Should it be mentioned in the beginning that there’s various conceptions of equality and non-discrimination in various constitutional traditions, and that is a right, and it varies, how we look at it, and if you want to gender the right to equality and non-discrimination, you probably, you know, want to go for an anti-subordination approach to the equality provision. So, it’s about, are the rights that we have the right ones? Do we need more rights? But also, how can we interpret the rights we have in ways that are more promising to do justice to women and women’s claims? 

(17:39) Women and other sexual minorities, too, right? So, most constitutions have a provision that refers to marriage. How do we interpret that provision? Do you interpret that to mean heterosexual marriage, as probably the founding fathers of most constitutions thought when the constitutions were initially drafted? Or do we go for a teleological, purposive, you know, living tree approach to constitutionalism and their provisions, and hence you actually say, “Well, you know, nowadays, this right to marriage has to be interpreted in ways that it incorporates or encompasses same sex marriage.” So, it’s a question of what rights, but also what interpretation of rights.  

(18:24) But you rightly ask about going beyond rights. And the answer is yes. I think that, in a way, the whole of constitutionalism, and not just the catalogue of rights, has gender implications. How you define your federal structures has implications. Do we say that important legislation was struck down in the US — the Violence Against Women’s Act — because it was considered that it didn’t fall within the jurisdiction of the US Congress, that this was for states to decide? So, the federal structure, you know, who decides on what matters, who decides on family matters, is one of the key key questions— constitutional questions. 

(19:06) It’s not just a question of, you know, federalism states versus federal authorities. It’s also a question of legal pluralism — what happens in societies where you have religious groups that claim that family or certain matters of family law should be decided through religious jurisdictions and religious law, or customary law or tribal law. So, sources of law, divisions of jurisdiction have also [a] huge gender impact. 

(19:36) And finally, you know, when it comes to deciding structures of power, are we happy to say anyone can be the legislature, as long as we have one person or one vote, or do we want to go beyond that and say, “No, actually, I will only recognise legitimacy if our parliament has a certain percentage of women, or a parity composition”? And more and more you see constitutions, especially Latin America, but also in other parts of Asia, some examples also in Africa, but also through amendments in Europe, containing provisions that either encourage political powers to pass legislation to ensure equal representation, or directly mandate a certain form of parity democracy in the understanding that contemporary democracies should aspire to a higher form of legitimacy, which is to say, no, women aren’t happy just being voters, they want to be decision-makers, and the constitution should make sure that it contains rules to make that be the case. 

(20:47) The rights debate is the most obvious debate. It’s also the debate that had traditionally been tackled more — the right to abortion, equality, those were, maybe, traditional constitutional struggles. But actually, there’s much more, and when you think about it, even theories of interpretation in a constitution, whether you impose originalism or the living tree approach, is going to have a huge impact, especially if you take into account how old some of the constitutions [are], like the US Constitution is, right? So, it’s the whole theory of constitutionalism, right? Interpretation, structures of power, federalism, the whole thing. 

Louise McCormack (21:24) So, you mentioned Latin America, Ruth. The ongoing constitutional process in Chile initially seemed promising, but it’s turned out to be a very uncertain example of how constitutionalism can be thought of in more gender-inclusive terms. Do you agree with this assessment? 

Professor Rubio Marín (21:40) Yeah. Chile was really, you know— seemed to be a very exciting promise. There had been a social outbreak, women and feminist movements at the forefront of it, and for the first time in history, in world history, there was a constitution-making assembly that was fully parity — it was half women. Not only that, it was a constitutional assembly that, in a way, had bypassed political parties. So, many people were running as independents, and the independents were having the leading voice. It was inclusive, not only in gender terms, but indigenous peoples, for instance, had a huge protagonism. The first President of the Constitutional Committee was an indigenous woman, and the process— they had set out guidelines for constitution-making, procedural rules that were really extraordinary. You know, making sure that constitution-makers were not going to be subjected to harassment, allocation of speaking times, dealing with the questions of care while you are sitting in a constitutional assembly, how do you deal with your care duties, and it was just such a— such an amazing thing. 

(22:51) And of course, not surprisingly, the draft that came out of that was also extremely fascinating. So, I mentioned the right to care and be taken care of. So, that became a constitutional right in the Chilean draft. The right to live free of violence, reproductive rights, sexual rights. So, sexuality, as opposed to or as different from, including sexual education as a fundamental right, but also the right to health and education that would be culturally appropriate, taking into account that for ethnic groups this may require different kinds of services. It was also very ambitious in terms of social rights. The right to water was granted. And of course, it recognised Chile, something that has never happened before, as a multinational country to take account of the existence of its indigenous groups. And so, it was really quite exciting.  

(23:48) Though, of course, people were a bit sceptical. Was this really going to be the case? I mean, this was a country that had been living with— with the same constitution that was drafted under Pinochet, with some amendments, but still the basic constitution. One of the countries with more socio-economic disparities, with a huge, you know, very consolidated, de facto business sector, and landowners. It seems a bit far-fetched, and in fact, for various reasons, the draft was submitted to referendum in September, and it didn’t succeed. 

(24:23) And part of the problem is that it was a yes or no — it was not that people could decide on various elements of the constitutional project. And of course, it’s hard to imagine people agreeing, fully, on the whole of the project that was so radical, and so different, from what Chile had had before. 

(24:39) So, now it seems that they’re back to a much more conventional road that, you know, is going to probably rely on a smaller constitutional committee of experts and taken very much in dialogue with political parties. So, it’s going to be less revolutionary, to say the least, and maybe rather conventional, to say the worst. I don’t know what it’s going to end up being, but I was talking to a colleague of mine and she was saying, “You know, Ruth, in the end, if we can rescue the parity rule”— because that was a rule that was in the constitution, as a defining element of Chile’s new political system, and to be applied to all state powers, not just the legislature — the judiciary, the executive— “If we can rescue the parity rule, you know, maybe that’s all we’re going to have in the end”, which would be really sad given the innovation that we had hoped for in the Chilean case. 

(25:42) But part of what I tried to do in the book is that I tried to cover some of the aspirations that women have crafted, whether or not they make it to the final constitution that gets approved. In my reading, that should form part of the history of constitutionalism — not just the texts that are approved, but the political processes and the mobilisation and women’s dreams and mobilisation attempts and constitution-making attempts, whether they succeed or not, I think form part of that untold history of constitutionalism. 

Louise McCormack (26:17) So, finally, how do you think gender constitutionalism will evolve as a discipline in years to come? 

Professor Rubio Marín (26:24) Well, I have all the hopes on the younger generations. In fact, if you read the book, you will realise that it is dedicated to the younger generations of scholars, and my hope is that when they work on this field, they don’t feel so much of an outcast as I felt when I started, you know, really opening the field of comparative constitutionalism and gender. But since that first edited volume that I did with Beth Baines, and came out in [the] Cambridge University Press, The Gendered Constitutional Jurisprudence (2005)— I think that was the first ever attempt to actually look at gender and constitutionalism comparatively— many other edited books have come out, some monographs, you know, we have Irving’s work, more of Baines’, Williams’, MacKinnon’s, and I think this monograph that I just wrote, plus the other volumes that I mentioned that are going to look at these questions regionally, I think there’s going to be really, you know, over the last 15-20 years, we’re going to find that there’s really a rich body of scholarship, and also networks of scholars. So I really hope that with all of that, this will really be taken seriously as a sub-discipline of constitutionalism, and of comparative constitutionalism. 

(27:42) This is also why I wrote that book. I felt that there had been quite a bit of looking into various themes, whether it be abortion, or same sex marriage, or trans, or you know, employment discrimination, or you name it. And there had been volumes that look at different jurisdictions. But I felt that the story that put all of this somehow together into one story— one account was needed. So, I really wrote this book very much in the hope that it would be a nice starting point. It’s something I would have wanted to have when I started my career, to then focus more on this area of studies and that I hope, again, that younger scholars will, you know— will take, will challenge, will rip apart, will destroy, will love, whatever, you know, all the emotions that academic pieces can provoke, but that it will reassure them that it is an important and meaningful area of research. 

Louise McCormack (28:40) I think that’s a very positive note to end on with a nice call to action.  

Professor Rubio Marín (28:44) Yes.  

Louise McCormack (28:45) For all those younger scholars.  

Professor Rubio Marín (28:46) Yes.  

Louise McCormack (28:47) Thank you so much for speaking with me today, Ruth. 

Professor Rubio Marín (28:49) Thank you for your time.  

Louise McCormack (28:52) RightsUp is brought to you by the Oxford Human Rights Hub. The Executive Producer is Meghan Campbell. This episode was produced and edited by Sophie Smith, and hosted by Louise McCormack. Music for this series is by Rosemary Allmann. Show Notes for this episode had been written by Sarah Dobbie. Subscribe to this podcast wherever you like to listen to your favourite podcast.