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Gender Performance, Sexual Subjects and International Law

Published online by Cambridge University Press:  09 June 2015

Brenda Cossman
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Extract

In international law the understanding of gender and its relationship to sex remains fairly traditional. In this essay, I explore the subversive possibilities of feminist criticism of this story for international law.

Type
Research Article
Information
Canadian Journal of Law & Jurisprudence , Volume 15 , Issue 2 , July 2002 , pp. 281 - 296
Copyright
Copyright © Cambridge University Press 2002

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References

1. On the role of cross-dressing in Renaissance theatre, and Shakespearean theatre in particular, see Garber, Marjorie, Vested Interests: Cross-Dressing and Cultural Anxiety (New York: Harper Perennial, 1993).Google Scholar

2. Butler, Judith, Gender Trouble: Feminism and the Subversion of Identity (New York: Routledge, 1990)Google Scholar [hereinafter Gender Trouble], and Bodies that Matter: On the Discursive Limits of ‘Sex’ (New York: Routledge, 1993) [hereinafter Bodies that Matter].

3. Butler, Gender Trouble and Bodies that Matter, ibid.

4. Butler, Gender Trouble, ibid, at 140.

5. Ibid.

6. Butler, Bodies that Matter, ibid.

7. Garber, Marjorie, “The Occidental Tourist” in Parker, Andrew, ed., Nationalisms and Sexualities (New York: Routledge, 1992)Google Scholar at 125.

8. See, e.g., Hilary Charlesworth, Christine Chinkin & Shelley Wright, “Feminist Approaches to International Law” (1991) 85 Am. J. lnt’1. L. 613; Hilary Charlesworth, “Alienating Oscar? Feminist Analysis of International Law” (1994) 25 Stud. inTransnat’l Legal Pol’y 1; Karen Knop, “Re/Statements: Feminism and State Sovereignty in International Law” (1993) 3 Transnat’l L. & Contemp. Problems 293; Charlesworth, Hilary & Chinkin, Christine, The Boundaries of International Law: A Feminist Analysis (Manchester, UK: Manchester University Press, 2000 and New York: Juris Publishing, 2000).Google Scholar On international human rights more specifically see Karen Engle, “International Human Rights and Feminism: When Discourses Meet” (1992) 13 Mich. J. Int’l L. 517.

9. Rome Statute of the International Criminal Court, 17 July 1998, U.N. Doc. A/CONF. 183/9 at article 7(3).

10. Charlesworth & Chinkin supra note 8. Steains, C., “Gender Issues in the Statute of the International Criminal Court” in Lee, R., ed., The International Criminal Court (The Hague: Kluwer Law International, 1999).Google Scholar This was not the first time that the use of the word “gender” was controversial on the international stage. At the preparatory meetings leading up to the Fourth World Conference on Women in Beijing, several countries objected to the use of the term gender in the Platform for Action. As Dianne Otto explains, “This objection was motivated by a desire to ensure that gender was not understood as socially constructed, and especially, to erase any suggestion that the Platform might be inclusive of homosexuals, bisexuals or transexuals” in “Holding Up Half the Sky, But for Whose Benefit?: A Critical Analysis of the Fourth World Conference on Women” (1996) 6 Australian Fern. L. J. 7 at 11. While the use of the word gender was retained, on the grounds that “there was no indication that any new meaning or connotation of the term, different from accepted prior usage was intended”, (ibid, at 11 quoting Report of the Informal Contact Group on Gender, July 7, 1995, UN Doc A/Confl77/L,2 at para. 2(2)), conservative states nevertheless made their objections clear, recording that they defined gender “as referring only to male or female, as grounded in biological sexual identity”.

11. At the Vienna Conference on Human Rights in 1993, it was agreed that the human rights of women should form ‘an integral part’ of the United Nations human rights work. See the Vienna Declaration and Programme of Action, I, para. 18, II, para. 37.

12. Charlesworth & Chinkin, supra note 8.

13. Report of the Expert Croup Meeting on the Development of Guidelines For the Integration of Gender Perspectives into United Nations Human Rights Activities and Programmes, 52nd Sess., UN Doc. E/CN.4/1996/105 (Geneva, July 3–7, 1995, prepared for the Commission on Human Rights, 20 November 1995).

14. Ibid.

15. The Special Rapporteur of the Commission on Human Rights on Violence Against Women, Race, Gender and Violence Against Women, 3rd Sess., UN Doc. A/CONF.189/PC.3/5 (prepared for the World Conference Against Racism, Racial Discrimination, Xenophobia and Related Intolerance, Geneva, 30 July 1-August 10, 2001, Preparatory Committee, 27 July 2001) [hereinafter Report of the Special Rapporteur].

16. Ibid, at 7.

17. Ibid, at 10.

18. Ibid, at 51.

19. See, e.g., Angela Harris, “Race and Essentialism in Feminist Legal Theory” (1990) 42 Stan. L. Rev. 581; Marlee Kline, “Race, Racism and Feminist Legal Theory” (1989) 12 Harv. Women’s L. J. 115; Kimberle Crenshaw, “Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics” (1989) U. Chi. Legal Forum 139. This critique has been echoed within international feminist scholarship. See, e.g., Tracey Higgins, “Anti-Essentialism, Relativism and Human Rights” (1996) 19 Harv. Women’s L. J. 89; Annie Bunting, “Theorizing Women’s Cultural Diversity in Feminist International Human Rights Strategies” (1993) 20 J. L. & Society 6; Karen Engle, “Female Subjects of Public International Law, Human Rights and the Exotic Other Female” (1992) 26 New Eng. L. Rev. 1509; Adrien Wing, Global Critical Race Feminism: an international reader (New York: New York University Press, 2000); Isabelle Gunning, “Arrogant Perception, World Travelling and Multicultural Feminism: the case of female genital surgeries” (1991) 23 Colum. Human Rights L. Rev. 189; Celina Romany, “Black Women and Gender Equality in a New South Africa: Human Rights Law and the Intersection of Race and Gender” (1996) 21 Brooklyn J. Int’l L. 857.

20. Beijing Platform for Action, UN Doc. A/CONF. 177/20, chap. I, resolution 1 (adopted at the Fourth World Conference on Women, 4–15 September 1995, Beijing). However, the recognition of women’s diversity was limited: all references to sexual orientation were removed from the Final Declaration. See Otto, supra note 10.

21. Report of the Special Rapporteur, supra note 15 at 4.

22. See supra note 15. See also Charlesworth & Chinkin, supra note 8.

23. See, e.g., Higgins, supra note 19; Rao, Arati, “The Politics of Gender and Culture” in Peters, Julie & Wolper, Andrea, eds., Women’s Rights, Human Rights: International Feminist Perspectives (New York: Routledge, 1995)Google Scholar; Nancy Kim, “Toward a Feminist Theory of Human Rights: Straddling the Fence Between Western Imperialism and Uncritical Absolutism” (1993) 25 Colum. Human Rights L. Rev. 49.

24. Leslie Amede Obiora, “Feminism, Globalization and Culture: After Beijing” (1997) 4 lnd. J. Global Legal Stud. 335 at ft. 152.

25. Dianne Otto, “Rethinking the Universality of Human Rights Laws” (1997) 29 Colum. Human Rights L. Rev. 1.

26. Ibid, at 27–28.

27. Ibid.

28. See Charlesworth, Hilary, “The Sex of the State in International Law” in Naffine, Ngaire & Owens, Rosemary, eds., Sexing the Subject of Law (North Ryde, UK: Sweet & Maxwell, 1997) 251.Google Scholar

29. Ibid, at 254.

30. Charlesworth & Chinkin, supra note 8.

31. Ibid.

32. Ibid.

33. Ibid.

34. See, e.g., Debra DeLaet, “Don’t Ask, Don’t Tell: Where is the Protection Against Sexual Orientation in International Human Rights Law?” (1997) 7 L. & Sexuality 31; James Wilets, “International Human Rights Law and Sexual Orientation” (1994) 18 Hastings lnt’l & Comp. L. Rev. 1; Douglas Sanders, “Getting Gay and Lesbian Issues on the International Human Rights Agenda” (1996) 18 Human Rights Q. 67; Amnesty International Breaking the Silence (1994).

35. See James Wilets, “Conceptualizing Private Violence Against Sex Minorities as Gendered Violence: International and Comparative Perspectives” (1997) 60 Albany L. Rev. 989, arguing that sexual minorities are gender outlaws. Sexual minorities, defined as “individuals who have traditionally been distinguished by their sexual orientation, inclination, behavior, or nonconformity with gender roles or identity” (ibid, at 990) are struggling against gender conformity and a “rigid bi-polar construction on gender” (ibid, at 1007). However, Wilets retains a traditional distinction between sex and gender, defining sex as “the biological designation of an individual as male or female (as genitally defined)” and gender as “the socially constructed roles of ‘female’, ‘male’ or combination thereof.” (Ibid, at 990).

36. For a discussion of a performative gender approach to the issue of transgender, see Hasan Shafiqullah, “Shape-shifters, Masqueraders & Subversives: An Argument for the Liberation of Transgendered Individuals” (1997) 8 Hastings Women’s L. J. 195; for a discussion of a performative gender approach to the issue of sado-masochism, see Sangeetha Chandra-Shekeran, “Theorising the Limits of the ‘Sadomasochistic Homosexual’ Identity in R. v. Brown” (1997) 21 Melbourne U. L. Rev. 584.

37. See Ratna Kapur, “A love song to our Mongrel Selves” (1999) 8 Social and Legal Studies 353; “Law and the Sexual Subaltern: A Comparative Perspective” (2000) 48 Clev. State L. Rev. 15; “Exotic Disruptions: Legal Narratives on Nation, Sex and Culture in India” (2001) 10 Colum. J. L. & Gender 333.

38. Philippines House Bill 1503. See IGLHRC Action Alert, “Philippines: Proposed Marriage Legislation in Senate Discriminates Against Homosexuals and Transgenders”, online: IGLHRC www.iglhrc.org/world/se_asia/philippinesl999feb.html (February, 1999).

39. Philippines House Bill 2784. See IGLHRC, “House Committee Approves “In Principle” Lesbian, Gay, Bisexual and Transgender Anti-Discrimination Bill, online: IGLHRC www.iglhrc.org/world/se_asia/philippines2001Dec_2.html.

40. Some queer theorists have begun to consider the impact of internationalization on gay and lesbian identity, noting in the words of Stychin, Carl the “danger of colonization by an Anglo-American model of identity” in A Nation by Rights: National cultures, sexual identity politics, and the discourse of rights (Philadelphia, PA: Temple University Press, 1998)Google Scholar at 196. For a critical analysis of the impact of internationalization and globalization on gay identities, see Dennis Altman, “Rupture or Continuity: The internationalization of gay identities” (1996) 48 Social Text 77; Cant, Bob, “Introduction” in Cant, Bob, ed., Invented Identities: Lesbians and gay men talk about migration (London: Cassell, 1997) 1.Google Scholar

41. See, e.g., Narayan, Uma, Dislocating Cultures: Identities, Traditions and Third World Feminism (New York: Routledge, 1997)Google Scholar; Grewal, Inderpal & Kaplan, Caren, eds., Scattered Hegemonies: Post Modernity and Transnational Feminist Practices (Minneapolis: University of Minnesota Press, 1994)Google Scholar; Mohanty, Chandra Talpade, “Feminist Encounters: Locating the Politics of Experience” in Barrett, Michele & Phillips, Anne, eds., Destabilizing Theory: Contemporary Feminist Debates (Stanford, CA: Stanford University Press, 1992)Google Scholar; Mani, Lata, “Multiple Mediations: Feminist Scholarship in the Age of Multinational Reception” in Crowley, Helen & Simmelweit, Susan, eds., Knowing Women: Feminism and Knowledge (Cambridge, UK: Polity Press, 1992).Google Scholar

42. Brenda Cossman, “Turning the Gaze Back on Itself: Comparative Law, Feminist Legal Studies and the Postcolonial Project” (1997) Utah L. Rev. 525.

43. See, e.g., David Kennedy, “The Disciplines of International Law and Policy” (1999) 12 Leiden J. Int’l L. 9, on new approaches to international law.

44. See, e.g., Ed Morgan, “The Hermaphroditic Paradigm of International Law: A comment on Alvarez-Machain” (1992) Can. Council of Int’l Law Proc. 78, using the hermaphrodite as metaphor for the gendered nature of international law.

45. The question of the depoliticizing impact of assimilation is well trodden. In the context of women, feminists have questioned whether assimilation through the process of rights recognition would not force women into male centric models, values, and institutions, destroying the women’s values, knowledge and ways of doing. In the context of gay liberation, queer theorists have questioned whether assimilation through rights recognition would force gay men and lesbians to abandon their subversive lifestyles, and adopt heterosexual models of family, sexuality and intimacy. See, e.g., Warner, Michael, The Trouble with Normal: Sex, Politics and the Ethics of Queer Life (New York: Free Press, 1999)Google Scholar; Lauren Berlant & Michael Warner, “Sex in Public” (1998) 24 Critical Inquiry 547. In the context of pornography, scholars have argued that it is the very process of censoring and censuring that creates the object of the obscene. In each of these contexts, the location of the subjects at the margins is in some way constitutive of a subversive identity, a subversive identity that comes to have normative value in its own right.

46. See Wilets, supra note 34. See also the work of the International Gay and Lesbian Human Rights Commission, which has advocated on behalf on sexual minorities, which it defines as “people whose rights are violated based on their real or perceived sexual practices with consenting adults or their experience or expression of their own gender.” IGLHRC “Sexual Minorities and the Work of the United Nations Special Rapporteur on Torture”, a paper submitted by the International Gay and Lesbian Human Rights Commission to Sir Nigel Rodley, Special Rapporteur on Torture, June 5, 2001. Online: IGLHRC www.iglhrc.org/issues/UN/UN_Torture200IJun.html

47. See Wilets supra note 34, and the publications and alerts of the International Gay and Lesbian Human Rights Commission (IGLHRC), e.g., IGLHRC, “Sodomy Fact Sheet: A Global Overview: Criminalization and Decriminalization of Homosexual Acts”, online: IGLHRC www.iglhrc.org/news/factsheets/sodomy.html.

48. IGLHRC Action Alerts, “23 Presumed Homosexuals Sentenced to Hard Labour”, online: IGLHRC www.iglhrc.org/world/africa/egypt2001nov_2.html (November 14, 2001). Egyptian law does not specifically criminalize homosexuality, so the men were charged with the offences of “obscene behavior” and “contempt for religion”.

49. IGLHRC Action Alert, “Demand the Immediate Release of HIV/AIDS Prevention Workers Detained Under Sodomy and Obscenity Laws”, online: IGLHRC www.iglhrc.org/world//s_asia/lndia2001Jul_2.html.

50. See, e.g., Kathryn Francke, “Theorizing Yes: An Essay on Feminism, Law and Desire” (2001) 101 Colum. L. Rev. 181; Kathryn Abrams, “From Autonomy to Agency: Feminist Perspectives on Self Direction” (1999) 40 William & Mary L. Rev. 801; Kathryn Abrams, “Sex Wars Redux: Agency and Coercion in Feminist Legal Theory” (1995) 95 Colum. L. Rev. 304.

51. See Ratna Kapur, “Tragedy of Victimization Rhetoric: Resurrecting the ‘Native’ Subject in International/Post-colonial Feminist Legal Politics” Harv. Human Rights J. [forthcoming in 2002].

52. Kristen Walker, “Capitalism, Gay Identity and International Human Rights Law” (American Society of International Law, Annual Meeting, Washington D.C. March 1999) [unpublished].

53. Ibid, at 8.

54. Marjorie Garber asks “Why is it so often Rosalind who is singled out as the exemplary early modern cross-dresser, the Katherine Hepburn (if not the Marlene Dietrich or the Annie Lennox) of her time?” (supra note 1 at 73). In her view: “Rosalind differs from Viola in a crucial way: she returns to the stage dressed as a women…. But in returning dressed as a woman she also allows for the possibility of a recuperative interpretation that suggests a transformed woman now “reabsorbed” into the community and thus capable of ‘vanishing’. Rosalind, according to this recuperative fantasy, has finished her job of education and self education and can now take up her wifely role.” (Ibid, at 76–77)

55. Hwang, David Henry, M. Butterfly (New York: New American Library, 1989).Google Scholar The play is based loosely on the international spy scandal in which a French diplomat had a 20 year affair with a Chinese opera singer who he believed to be a woman. Boursicot was accused of passing information to China, and both Boursicot and Shi were sentenced to six years imprisonment.

56. See Kathryn Remen, “The Theatre of Punishment: David Henry Hwang’s M. Butterfly and Michel Foucault’s Discipline and Punish” (1994) 37 Mod. Drama 391; Robert Skloot, “Breaking the Butterfly: The Politics of David Henry Hwang” (1990) 33 Mod. Drama 59; John Louis DiGaetani, “M. Butterfly: An Interview with David Henry Hwang” (1989) 33 The Drama Rev. 141; Marjorie Garber, supra note 1.

57. Supra note 54 at 63