Gender and the law.
Text: Sandra Hotz
Why legal gender studies play an important role in democracy and justice.
Neither the Enlightenment in France with its calls for liberté, egalité, fraternité, nor the Swiss federal state of 1848 brought about political and legal equality for women. Texts by the pioneers of the Enlightenment seem innocuous only on the surface: The “free individuals” who came together to agree the treaty were all men. Their aim was to abolish the estates-based society, not gender inequality. John Locke, for instance, understood political rule as a relationship between inherently free and equal men who use the law to secure their private property. This replaced “the rule of the father” with “the rule of men”. Back then, human rights were specifically men’s rights.
The 1848 agreement creating the Swiss federation was therefore an agreement between men. Although the Federal Constitution stipulated legal equality for “all Swiss citizens,” it excluded women from political rights and compulsory military service. Commenting in 1852, Johann Caspar Bluntschli said: “By its nature, the State is so decisively male in character that women can only indirectly participate in it. A woman’s calling does not direct her toward public life in politics, and her natural characteristics do not qualify her, neither in peacetime nor in war, for the difficult tasks of the State.” Similar statements circulated in the Swiss parliament over a century later, when women’s suffrage was being discussed. Today, right-wing populists in Europe draw on the image of a strong male nation.
As a state act of power defined by the participating men, the 1848 treaty confined women and their social needs to the “private sphere” for the centuries thereafter. In doing so, it constructed the gender binarism that would shape relationships, family life and the division of domestic, family and paid work for a very long time. Over half of the adult population in Switzerland could not vote at the national level until 1971. One can therefore say that, up until this point, Switzerland was not a democracy. Since then, the country has certainly become more democratic. Whether people at the time felt this lack of democracy is anyone’s guess.
Today, 50 years later, the question of who defines the state’s legal framework and decides on our tax and social systems remains one of structural power. Switzerland’s 2020 parliament might well have 83 women in the National Council and 12 in the Council of States, but that still means men outnumber them by 56 – a figure that roughly equates to two full school classes. Parliament has undoubtedly become more feminine, but it does not represent the general Swiss population in terms of sex, gender identity, sexual orientation, ethnicity, occupation or age. For instance, no one (or almost no one) who sits on the National Council belongs to the care profession and none are over 80. Scope for children and young people to participate in federal politics is limited to the Jugendsession (Youth Session). Foreigners continue to be excluded.
Many women were involved in the French Revolution – and of course some of these women recognized and called attention to the mismatch between the demands for human rights and the different treatment of the sexes. These voices included Marie Jean Antoine de Condorcet, John Stuart Mill, Olympe de Gouges and Mary Wollstonecraft. The pioneers of legal gender studies never once – and this still applies today – denied “other” human rights. In her Déclaration des droits de la femme et de la Citoyenne, published in 1791, Olympe de Gouges demanded legal and political participation for women: Les mères, les filles, les soeurs, représentantes de la nation, demandent d’être constituées en Assemblée nationale. […] Le but de toute association politique est la conservation des droits naturels et imprescriptibles de la Femme et de l’Homme (Art. 2). Back then, as today, it was about verbalizing the rights of the “invisible” with all their different needs. For de Gouges, for example, it was crucial that a woman should be allowed to talk about having an illegitimate child and that the child could be cared for.
An important issue today is that divorced mothers who are working part-time while also performing unpaid care work should not be allowed to end up in poverty in old age. It is also appropriate to think very carefully about which people will have to provide even more care during the COVID-19 pandemic. How can we identify them, allow them to participate and best protect them? This would also include specific considerations about how scarce protective equipment (masks, glasses, gowns, gloves) can be deployed and to whom. The concept of “individual responsibility in the private sphere” is limited.
Gender law has always been about gender equality for everyone, about solidarity and about highlighting existing imbalances and structural asymmetries of power that the law causes and constructs – and that the law could perhaps equalize and eliminate, but expectations that this will happen should not be too high. An intersectional perspective (one which recognizes that different forms of discrimination can overlap in a single person) could, in the context of medical care during the pandemic, potentially prevent a situation where we exclude and silence the people who are most affected by the situation and only pay attention to those who dare to speak or who can speak, or those who are registered and particularly well protected by the law. These people are usually not the migrants, the refugees or the “sans-papiers” in Switzerland. They are also not those who just happen to end up on the other side when Switzerland closes its borders.
It is also no accident that young homosexual men are especially likely to be victims of hate crimes. This is because, as they move into adulthood, their chosen lifestyle is clearly interpreted as a serious risk to society. Equally unsurprising is the fact that the newly expanded anti-racism provision that makes it a crime to incite hate, which the public approved in February 2020, does not include trans people. It is, after all, harder to pin down their lifestyles in stereotypes. In addition, since the provision focuses on individual wrongdoing and sanctions, the social power structures that lead to hate crimes inevitably fade into the background. Yet if we want to achieve gender equality, there absolutely must be an analysis of the underlying structural relations that encourage people to exclude and denigrate others based on their gender identity, gender expression, sexual characteristics or sexual orientation. In March 2020, the Council of States decided that hate crimes against homosexuals should not be registered. All in all, this leaves a great deal to be desired in terms of progress toward a society free from discrimination on the grounds of gender, gender identity, gender expression and sexual orientation.
Too often, equality continues to fall by the wayside, and discrimination is often only visible from an intersectional perspective. Gender law seeks to help solve these problems.