5 - Toward a Constitutional Gender Erasure or a Constitutional Gender Reaffirmation?

Summary

Gender constitutionalism in the new millennium is challenging both the hegemony of the heterosexual marital family for the sake of nonmarital and nonheteronormative affective unions and – slowly but increasingly – the gender/sex categorization system through the gradual affirmation of a right to gender identity. While these evolutions point in the direction of the disestablishment of the gender order and, according to some, even question the enduring constitutional relevance of the very concept of gender, over the last decade we observe with growing concern a global movement (exemplified through evolutions in Central and Eastern Europe) fed by neoconservative, populist nationalist, and religious fundamentalist forces of various kinds, promoting preemptive action or triggering backlash to combat what has come to be identified as “gender ideology” in an attempt to reaffirm traditional family and gender roles. The reproductive rights of women, as well as equality rights of sexual minorities and gender nonconforming individuals, have become new targets under increasingly organized strategies and attacks, which include sophisticated tactics of constitutional lawfare.