Constituting Equality: Gender Equality in Comparative Constitutional Law*

Continental breakfast

Welcome and introductory remarks

• Dean Lauren Robel

9:15 - 10:15 am
Moot Court Room

Video* or mp3 audio

Keynote address"Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction, Interpretation

• Vicki Jackson
  "Gender Equality and the Idea of a Constitution: Entrenchment, Jurisdiction, Interpretation"

Coffee break

10:30 am - 12:00 pm
Moot Court Room

Video* or mp3 audio

Panel: Gender in the structure of government: the example of quotas

• William Scheuerman
  Moderator
• Drude Dahlerup
  "Gender Quotas in Politics—A Global Trend"

  Although highly controversial, gender quotas in politics have recently been introduced in countries all over the world. Political parties and parliaments have responded to growing national and international pressure to ensure gender balance in politics. Many different types of gender quotas are, however, in use. In this paper, the implication of different quota regimes, defined as the combination of the electoral system and the quota type is analyzed. It is argued that gender quotas should not be seen as discrimination against men, but rather as compensation for the structural discrimination against women.

• A. Yasmine Rassam
  "Women's Participation in Iraq's Democratization Process: The Constitution and the Quota"

  Since the overthrow of Saddam Hussein and the Ba'ath regime, Iraqi women have actively engaged in the democratization process, often at the expense of their personal security and in an extremely insecure environment. Part of their political agenda has been the inclusion of a quota for women's in the national government in both Iraq's interim and permanent constitutions. Their efforts successfully resulted in a 25% quota in both constitutions. This paper will analyze how Iraqi women have fared in terms of political representation, participation in the decision-making process, and in securing and safeguarding women's rights as a result of the constitutional quota.

• Susan Williams
  "Equality, Representation, and Disruption of Hierarchy:
  Justifying Electoral Quotas for Women"

  There is great controversy in both the scholarly literature and the political discourse of many nations over whether electoral quotas for women are justified. This paper will argue that current models of equality and representation are both missing an important element that would contribute significantly to the justification of quotas: a focus on assuring the permanent capacity for disrupting hierarchy. When this element is added to the understandings of equality and representation in the feminist literature, a justification for electoral gender quotas emerges that is significantly stronger both theoretically and politically.

12:00 - 1:00 pm
Faculty Lounge

Video* or mp3 audio

Lunch

Panel: Cultural/religious rights and gender equality

• Carol Greenhouse
  Moderator
• Beverly Baines
  "One law for all: women's equality, religious freedom, and post-secularism"

  The Ontario government resolved the Sharia family law arbitration controversy by committing to "one law for all Ontarians". Many women's groups, both Muslim and non-Muslim, had lobbied for this outcome. Given the origins of the controversy, they had good cause to celebrate. However, "one law for all" imports its own controversies, including: Is it consistent with substantive gender equality? What are the consequences of privatizing Sharia family law? Assuming "one law for all" is a liberal constitutional vision, will it survive in a post-secular world?

• Aili Marie Tripp
  "Debating Women's Rights and Customary Law in Africa Today"

  Since the 1990s, new constitutions in countries like Mozambique (1990), Namibia (1990), Ethiopia (1994), Malawi (1994), Uganda (1995), South Africa (1996), Rwanda (2003), Burundi (2005), and Swaziland (2006) have included non-discrimination or equality provisions, prohibiting customary practices if they undermined the dignity, welfare or status of women. These were new developments in African constitution-making and can be contrasted with constitutions passed prior to 1990, in which customary law generally was not subject to any gender-related restrictions. Women's movements played an important role in ensuring that these clauses were included. This paper looks at the debates surrounding these provisions, the reasons for these developments, and the impact of these clauses on subsequent legislation.

• Felicia Coleman
  "Customary Law, Statutory Law, and Gender Equality in Liberia"

Coffee Break

3:00 - 4:30 pm
Moot Court Room

Video* or mp3 audio

Panel: Constitutional incorporation of international law and gender equality

• Elisabeth Zoller
  Moderator
• Rebecca Cook
  "Constitutional Incorporation of International Human Rights Law:
  the 2006 Colombian Constitutional Court Decision on Abortion" (co-authored with Veronica Undurraga, Faculty of Law, University of Chile)

  The Constitutional Court of Colombia decided, in case C-355/06, that the criminal prohibition of abortion in all circumstances violates women's fundamental rights. This paper will analyze how the Court interpreted the 1991 Colombian Constitution consistently with regional and international human rights law to protect the human rights of pregnant women in the abortion context. It is the first constitutional court decision that incorporates human rights treaty law to protect women's rights to decide whether or not they want to found a family. In doing so, the Court solidifies not only the rights of Colombian women, but lays a foundation for protecting the reproductive rights of women in countries that have ratified the treaties on which the Court relies.

• Christiana Ochoa
  "Cosmopolitan Activity and the Implementation of Gender Equality Frameworks"

  This paper will investigate how various constitutions have sought to integrate international gender equality rights into their domestic frameworks. It will first provide a description of how this has been done using examples primarily from Latin America. It will also provide a theoretical framework for what the process says about women's roles as national citizens as well as their roles as global or cosmopolitan citizens. In providing this framework, the paper will pay particular attention to the interaction of domestic customs, especially when such customs come into conflict or particularly coincide with international human rights relating to gender equality.

Free time

8:30 - 9:00 am
Third Floor Lobby

Continental breakfast

9:00 - 10:30 am
Faculty Conference Room

Video* or mp3 audio

Panel: Substantive rights and their impact on gender equality: the examples of reproductive rights and freedom from violence

• Dawn Johnsen
  Moderator
• Mary Anne Case
  "The German Compromise on Abortion from a Feminist Fundamentalist Perspective"

  This paper will explore first, the extent to which the complicated German compromise on abortion has been a successful one, and second, why one still might have concerns about it from a feminist perspective.

• Joanna Erdman
  "American Law in an English Courtroom: The Axon Case"

  In R. (on the application of Axon) v. Secretary of State for Health & Another [2006], the English High Court affirmed that health professionals are obligated to protect the confidence of mature minors seeking advice and/or treatment on contraception, STIs and abortion. The Court reasoned that a duty of parental disclosure is inconsistent with the principle of autonomy and the right to participate in decision-making processes of fundamental importance. In the course of the judgment, Mr. Justice Silber dismissed the U.S. Supreme Court decision in Planned Parenthood v Casey, and other American cases respecting minors' access to abortion services as not relevant to the issues before the court. This paper evaluates Mr. Justice Silber's reasons for the limited comparative value of American constitutional jurisprudence in the English context, and the implications of this approach for abortion law reform and judicial review in other jurisdictions.

• Ying Lao
  "Violence Against Women in Burma and the Draft Federal Constitution"

  This paper will address violence against the women of Burma in a variety of contexts. It will describe the work of the Women Against Violence Program of the Women's League of Burma and it will analyze the role of women in the Constitution drafting process and their efforts to use the Constitution to address violence against women.

10:30 am - 12:00 pm

Video* or mp3 audio

Panel: Women in the process of constitution-making

• Jeannine Bell
  Moderator
• Helen Irving
  "Shaping the Constitutional Community: Women and Constitutional Design"

  Although constitution-making has always been a male-dominated business, we know that women in recent years have been directly involved in framing new constitutions. Less well-known is the indirect role they have long played, as lobbyists, activists, and legal commentators during the framing of their country's constitution and in debates about its amendment. Women have, thus, long claimed membership of the constitutional community, both before and after its completion. This paper considers the history of women's participation in debates about constitutional design. It also reflects on what is needed if constitutional design is to be linked to the goals of gender equity and agency.

• Thin Thin Aung
  "Women in the Constitution Drafting Process in Burma"

  Since independence from British colonial rule in 1948, Burma has had two constitutions: the first written in 1947 and second in 1974. Women were not represented in either of these constitution-drafting processes and their interests were not reflected in either constitution. Burma has been ruled without a constitution since 1988 when the rule of law was nullified by the military dictatorship in response to nationwide civil uprisings calling for a return to democratic rule. A military-led constitution drafting process has been sporadically ongoing since 1993. Burma's border based opposition movement is also engaged in drafting a constitution for Burma. The Women's League of Burma (WLB) is working within this constitution-drafting process to encourage the promotion and acceptance of principles and practices of gender equality as well as the meaningful participation of women in decision-making processes. The experience of history and of other nations teaches us that formal equality of opportunity will not lead to real, substantive equality. In the context of a future Burma's federal constitution, one concrete and proven mechanism to bring about greater gender equality in government is the quota system for women's representation in politics.

• Adrien Wing
  "Founding Mothers for a Palestinian Constitution?"

  What were the roles of women in creating the existing Palestinian Basic Law and draft constitution, both of which were done under the former secular Fatah-led government of the late Yasser Arafat? What role might Palestinian women play in developing a new constitution under the current Hamas government, which is Islamist in nature. Comparative examples will be drawn from countries including South Africa and Rwanda.

Lunch

Roundtable discussion and closing remarks