Gender & Private International Law: Defining “Gender”

By Ivana Isailović

Unlike other fields--most notably public international law--Private International Law (PIL) rules, doctrines and practices are rarely analyzed in relation to ‘gender.’ Yet, many questions at the heart of the discipline—such as the recognition of foreign divorces and marriages— allocate privilege and wealth based on gender. Simultaneously, scholars working at the intersection of gender and legal studies often overlook PIL, focusing instead on public law and human rights. Yet, PIL is central to some of the pressing issues gender scholars are invested in, including, for instance, the regulation of the global market for reproductive services, the prevalence of so-called “forced marriages,” or how the imposition of Western family and gender norms in colonial spaces have historically shaped Empires.

“Gender” refers to the social construction of norms, attitudes and roles assigned to “women” and “men.” It is distinct from biological differences (often referred to as ‘sex’), even though for decades scholars have debated the impact of nature on gender identity. “Gender studies” describes and interrogates individual and collective practices, experiences, cultural representations and regulatory structures that shape the sense of the Self and reproduce, or subvert ideas about appropriate roles of “men” and “women.”

Since the 1970s, the field of gender studies has expanded in many directions, including geographically, in a way that makes it extremely diverse and self-critical. Critical race theorists and socialist feminists have emphasized the role of race and class in relation to gender. Queer scholars have challenged gender binaries that permeate cultural, political and legal spaces by showing the fluidity of seemingly well-established identity categories such as “woman,” “gay” or “lesbian.” For instance, queer scholars have demonstrated how the current cultural and political emphasis on ‘same-sex marriage’ regulates and risks devaluing intimate relationships that deviate from marriage. More recently, studies in transnational feminisms have unearthed the links between gender, colonialism and global capitalism, destabilizing the centrality of nation-states, as well as other Western liberal paradigms.

The translation of these ideas into law has taken primarily two forms. First, liberal feminism insists on rights allocation, the distinction between public and private, emphasizing the concept of equality and autonomy. Second, radical feminism focuses on power structures and reveals the totalizing hierarchical structures that historically marginalized communities (women, gays and lesbians, or racial minorities) face. Scholars have repeatedly flagged some of the limits of these approaches, reinvigorating the debates about how we should understand norms, legal processes and actors, in relation to gender, race, sexuality, class, time, and geographical locations in a global context.

What can gender studies and private international law teach each other? For PIL scholars, applying the gender lens would, at a minimum, force us to see how the allegedly apolitical techniques and core PIL concepts entrench power structures, and produce gender-based representations and hierarchies. For instance, the current debates about transnational surrogacy contracts and their validity ignore studies showing that under certain conditions, surrogacy could be a rational economic choice for the surrogate. For gender and law scholars, investigating PIL rules and techniques would illuminate how “private” law (contracts, tort, family or property) and its practices applied in the global space--that often go unnoticed--historically shaped and continue to affect our cultural understanding of gender, and the cultural and economic organization of communities in a global context. For instance, Knop, Michaels, and Riles illustrate how culture and gender interact in a transnational corporate law case and often risk disadvantaging women.

When reading these materials, please focus on these questions:

1- How do issues of ‘gender’ appear in your legal work? Do you use gender-based analyses? What are the theories/approaches that you find the most appealing and why?

2- What are the obstacles in using ‘gender’ when analyzing private international law?

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