Human Rights, Sex, and Gender: Limits in Theory and Practice

Pace Law Review Volume 31 Issue 3 After Gender?: Examining International Justice Enterprises Article 5 June 2011 Human Rights, Sex, and Gender: Limits in Theory and Practice Lara Stemple UCLA School of Law Follow this and additional works at: https://digitalcommons.pace.edu/plr Part of the Human Rights Law Commons, and the Sexuality and the Law Commons Recommended Citation Lara Stemple, Human Rights, Sex, and Gender: Limits in Theory and Practice, 31 Pace L. Rev. 824 (2011) Available at: https://digitalcommons.pace.edu/plr/vol31/iss3/5 This Article is brought to you for free and open access by the School of Law at DigitalCommons@Pace. It has been accepted for inclusion in Pace Law Review by an authorized administrator of DigitalCommons@Pace. For more information, please contact . Human Rights, Sex, and Gender: Limits in Theory and Practice Lara Stemple* At the Pace Law Review Symposium entitled After Gender: Examining International Justice Enterprises, I was delighted to participate on one of the four panel “conversations” along with Bridget Crawford (Pace), Suzanne Goldberg (Columbia), Scott Long (Harvard), and Carole Vance (Columbia). Refreshingly, rather than the typical fifteen-minute panel presentations, panelists were invited to converse around a theme; some of us spoke beforehand, together with organizers Darren Rosenblum (Pace) and Janet Halley (Harvard), to map out the directions our conversation might take. Our panel’s theme was christened Human Rights Beyond Sex and Gender. As I reflect on the unfolding of that conversation, it occurs to me that a more accurate though surely less snappy title would have been “Human Rights Beyond Sex and Gender as Currently Rendered in International Lawmaking.” In my view, a project no less ambitious than the development of a body of international human rights law applicable to all people demands thoughtful consideration of gender. The problem is that when lawmaking pen has finally met paper, the outcome has been distressingly limited. I focus my comments here on the role of sexual violence in international law, both because it is a topic on which my advocacy practice has focused, and because sexual violence represents the central issue around which women-focused international law-making has coalesced in recent decades.1 My theoretical interest in issues concerning gender and sexual violence originates from my practical experience as a * Director of Graduate Studies and Director of the Health and Human Rights Law Project at UCLA School of Law. 1. See Alice M. Miller, Sexuality, Violence Against Women, and Human Rights: Women Make Demands and Ladies Get Protection, 7 HEALTH & HUM. RTS., no. 2, 2004 at 16. 824 1 2011] HUMAN RIGHTS, SEX, AND GENDER 825 human rights lawyer. Working for different women’s rights non-governmental organizations (NGOs), I routinely employed a range of international human rights instruments as tools to advocate against the sexual and reproductive subordination of women and girls. Later, I served as the director of the human rights organization Just Detention International (JDI), which works to end sexual violence in prisons, jails, and immigration detention. Because approximately 91 percent of prisoners are men,2 I moved from advocacy concerning issues affecting mostly women to advocacy concerning an issue affecting mostly men. In so doing, I was struck by how few tools were at my disposal when the victims of sexual abuse were male. Indeed, the instruments that address sexual violence the most comprehensively exclude men. Beyond the limited utility of the instruments, I found that this sex-based framing reinforced an us-versus-them dualism that was generally useless and frequently counterproductive. Men’s rights advocates latched on to messages about prisoner rape as proof that feminists were wrong about rape. Likewise, some feminists at rape crisis centers were at first openly resistant to serving male prisoner rape victims. Gender nonconforming people, who are frequently victimized in prisons, did not fit comfortably within the essentialist two-sex binary presented in the instruments. Instead of belonging to any one constituency, the phenomenon of rape is instead part of a larger whole, related, of course, to the exercise of domination, the violation of bodily integrity, and the subjugation of its victims. And, yes, rape is almost always about gender, which is not to say it is always about women. Feminist approaches that value equality and inclusion, that interrogate structural hierarchies, and that examine intersecting forms of oppression have proved useful. Other “feminist” approaches resting upon a women-versus-men 2. World Prison Brief, INT’L CTR. FOR PRISON STUDIES, http://www.prisonstudies.org/info/worldbrief/wpb_country.php?country=190 (last visited Aug. 3, 2011). Just Detention International now works in multiple countries, but when I worked there it was focused only on the United States. This is therefore U.S. data. https://digitalcommons.pace.edu/plr/vol31/iss3/5 2 826 PACE LAW REVIEW [Vol. 31:3 perspective have been untenable; ideology too often trumps evidence, and alternative perspectives seem unwelcome. Neither I nor most scholars who seek to challenge the sexbased certainties embedded in international law advocate for an erasure of gender considerations. Undoing rape requires thorough attention to gender it all its forms. But despite assurances like these, advocate friends and law students I teach who are exposed to the academic literature critical of current approaches often fret that the critiques threaten to undo hard-won progress by women’s rights movements. Others ask, quite rightly, how movements for transformative gender change can ever describe inequality (“women are victims”) without re-inscribing sex-based stereotypes (“women are victims”). It simply cannot be that all advocacy for gender equality actually reinforces women’s inequality. The problem lies not with the advocacy per se, but with the approach as currently articulated in international law. International law’s approach to violence against women has been problematized by many at the Symposium, including but not limited to these participants: Karen Engle has questioned “the assumption that women who have been raped in wartime have been destroyed.”3 Ratna Kapur has argued that “victimization rhetoric has reinforced an imperialist response toward women in the developing world” by representing them “as thoroughly disempowered, brutalized, and victimized: a representation that is far from liberating for women.”4 Carole Vance and Alice Miller have argued that the preference for “innocent” victims stems from the desire to create appealing advocacy messages, but risks leaving other victims out, serving to reinforce hierarchical norms of sexual privilege.5 I hope to contribute to this ongoing dialogue my own concerns about the problematic practical and theoretical 3. Karen Engle, Judging Sex in War, 106 (...truncated)