Beyond gender equality? Anti-gender campaigns and the erosion of human rights and democracy

Abstract

Although resistance to the incorporation of ‘gender’ in human rights law and policies is not new, since 2013 anti-gender campaigns have articulated as movements and increased their visibility. More recently, the transnational dimension of the anti-gender offensive has become visible as a challenge to human rights standards, including the anti-violence against women project, and a process of democratic erosion. In this column, I make a short overview of this social and political phenomenon and describe how these anti-gender campaigns have entered the human rights systems and their discourse has shifted from religious justifications towards legal ones. I conclude with general suggestions to strengthen the resilience of the human rights systems to these processes.

1. Introduction

‘Rather than (as I had mistakenly thought) becoming clearer over time, gender has become more elusive; the site of contestation, a disputed concept in the arena of politics’.

Scott, 2013:65.

The last 40 years have seen significant developments in relation to gender equality and the protection of women from violence, largely the result of women successfully organising and advocating for their rights. The United Nations (UN), the Organization of American States (OAS), the European Union (EU), and the Council of Europe (CoE) have engaged with women’s movements and responded to their demands by adopting a series of legal instruments that entail a formal recognition that discrimination against women violates the principles of equality of rights and respect for human dignity. ¹ A clear majority of States have committed to these principles, and, although with multiple shortcomings, they have transformed and adapted their domestic laws and policies to comply with international norms.

That said, recent years have witnessed a series of anti-gender campaigns challenging and resisting the gender equality project. ² These campaigns have led to public demonstrations challenging very diverse equality projects, with a strong presence in Europe and the Americas, where gender equality projects have been promoted at different levels and where democratic upheavals have increased. In fact, some of these claims have been supported by political figures in both continents, becoming public policy in some cases. ³ These controversies have also reached international organisations, particularly their political bodies and instances of treaty negotiation, ironically by the hand of the increased interaction between organisations and civil society, as I describe in Section 2.

In Section 3, I contend that the seemingly growing social support and ability of anti-gender campaigns to reach governments and organisations can be partially explained by the change in the discourse used by these campaigns. Finally, while judicial and expert human rights bodies appear more resilient to these developments than political bodies, I suggest in Section 4 that a comprehensive institutional response engaging multiple bodies is required in response to these current challenges.

2. Actors, arenas and strategies

In 1986, Joan Scott defined ‘gender’ as ‘a constitutive element of social relationships based on perceived differences between the sexes, and a primary way of signifying relations of power’. ⁴ Since then, the social construction of sexual difference and the political nature of gender relations seemed settled in feminist scholarship. That said, there were concerns early on about the way ‘gender’ was being institutionalised and operationalised in the field of development and human rights law, since it can easily be used in a descriptive way, removing the question of power (despite recognizing that unequal treatment constitutes discrimination). ⁵ Baden and Goetz remind us of the discussions back in the 1995 Fourth World Conference on Women in Beijing (the Beijing Conference) where different feminist groups were worried about the ‘depoliticization of gender relations’. Conservative groups, however, were concerned by the opposite. For them, ‘gender’ over-politicised the relations between women and men and disrupted ‘cherished certainties about human relations’. ⁶ Vatican representatives also suggested that the notion of gender could imply an ‘unacceptable program that includes toleration for homosexual orientations and identities’, implying their suspicion around the notion of ‘gender as socially constructed’, and lobbied against it. ⁷ Although ‘gender’ was explicitly introduced in the Beijing Platform, these extreme conservative challenges to the notion of gender have been a common feature in international treaty negotiations for almost 30 years and would increase in the years to come, expanding beyond ‘women’s instruments’. ⁸

During the negotiation of the statute of the International Criminal Court (ICC statute) there was again strong resistance to incorporating the notion of ‘gender’, the main concern also being that the term might sanction rights based on sexual orientation. The definition of gender finally included in the ICC Statute has been strongly criticised for ‘erasing’ the social construction of gender. ⁹ The repercussions of those controversies extended until the recent drafting of the Convention on Crimes Against Humanity (CAH Convention). Although the International Law Commission (ILC), drafting the CAH Convention, seems to have compromised and did not include a definition of gender, they confirmed in the commentary to the draft articles that ‘the view of gender as a socially constructed (rather than biological) concept has been supported by several developments in international human rights law and international criminal law, other international authorities and in the jurisprudence of international criminal courts and tribunals’. ¹⁰

I confess that, having focused on gender-based violence against women in my PhD and in several European projects, the turn that anti-gender discussions took in Europe took me quite by surprise. I expected the adoption of the third regional convention on the topic, adding to the already veteran Inter-American Convention on Violence against Women and the Protocol on the Rights of Women in Africa, to be a simple matter. I was certain that the legal standing of the anti-violence project was firm in Europe, stemming from the widespread ratification of the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) by European States and the ever-growing body of domestic laws and policies adopted on the issue. However, during the drafting process of the Council of Europe’s Convention on Preventing and Combating Violence against Women and Domestic Violence (the Istanbul Convention), the Vatican expressed its concern in relation to the draft definition of gender and promoted the adoption of the ICC Statute’s one, arguing that a ‘purely sociological definition of gender’ as the one introduced in the draft Convention ‘will be used to destroy the ordinary meaning of “man” and of “woman” with incalculable legal and social consequences’. ¹¹ Similar challenges were voiced by other conservative representatives.

The Istanbul Convention ultimately defined gender as ‘the socially constructed roles, behaviours, activities and attributes that a given society considers appropriate for women and men’. ¹² Not exactly a ground-breaking definition, since it follows from current legal understandings, as discussed above, and upholds a binary view of sex (women/men). Despite such conventional understanding of gender, European States have refused ratification arguing that such conception of gender introduces a recognition of sexual orientation and gender identity. A stark example of these anti-gender challenges was the Bulgarian Constitutional Court’s ruling of 2018 about the incompatibility of the Convention with the Bulgarian constitution arguing that the Convention’s definition of gender denies the biological distinction between men and women. In response, the Venice Commission issued an opinion in which it confirms that the understanding of gender in the Istanbul Convention does not set new standards by including gender identity and sexual orientation into the list of prohibited distinctions, instead it builds on legal obligations that originate in other legal instruments, including the European Convention of Human Rights and its case law. ¹³ The United Nations Special Rapporteur on Violence Against Women has called on Bulgaria ‘to counter the misinterpretation and to properly translate “gender”, promote the term and the concept of gender-based violence against women and to proceed to the ratification of the Convention’. ¹⁴

Conservative opposition to gender has also been present in the OAS. In fact, the political bodies of international organizations seem to be the regular arena for anti-gender campaigns. In the Americas, anti-gender movements became active in 2013 during the 43 rd regular meeting of the General Assembly (GA) of the OAS, bringing similarly unexpected challenges to what seemed established standards. Although the instrument was finally adopted and opened for signature, there was a strong lobbying against the adoption of the Inter American Convention against all forms of discrimination and intolerance. ¹⁵ The fact that non-discrimination and equality are rooted in the American Convention of Human Rights and are considered jus cogens by the Inter-American Court did not appear to deter these attacks. In the same session, Resolution 2807 on Human Rights, Sexual Orientation, and Gender Identity and Expression, a resolution that had been systematically proposed by Argentina, Uruguay and Brazil since 2008, ¹⁶ also triggered strong resistance. The resolution passed, but for the first time, a group of States demanded that their opposition to the resolution was recorded in the final document. ¹⁷ In 2017, the tension between anti-gender and progressive movements became such, that the OAS changed the regulation of civil society participation in the GA to prevent clashes, yet, in practice, these changes resulted in the increase of religious groups and churches in the GA.

Who are behind these fervent anti-gender sentiments? The emergence of anti-gender discourses at the national level both in Europe and the Americas can be tracked down to religious circles, promoted primarily by the Vatican’s notion of ‘complementarity’, that is, the view that men and women’s equal dignity is premised on and manifest in essential and complementary physical, psychological and ontological differences. The Vatican has opposed changes in secular law and the very use of the word ‘gender’ in venues ranging from the United Nations to legislative bodies and protest movements in every part of the world. ¹⁸ In the Americas, the Evangelic Church has gained prominence in recent decades, engaging even in presidential campaigns. ¹⁹

However, religious groups are not the only actors in these campaigns. Non-governmental organizations (NGOs) have a key role during treaty negotiations and interact with political bodies of international organizations, making the engagement of secular actors in anti-gender campaigns essential. These NGOs, however, are not grassroots-born, but financed by elite groups, and have a notable transnational character. The French association ‘Manif Pour Tous’ ²⁰ , which organized multitudinous marches in Paris against same sex marriage in 2012 and in 2013, has a German counterpart, ‘Demo Für Alle’ ²¹ , protesting against sex education in schools. The Peruvian organization ‘Con Mis Hijos No te Metas’ ²² [Don’t mess with my children] has been replicated in several Latin-American States and Spain. The Spanish ‘Hazte Oir’ [Make yourself heard] has a digital and transnational reach through ‘Citizen Go’ ²³ , active in 50 States. ‘Pro-Life’ organizations are present in multiple countries, mobilizing crowds against abortion and reproductive rights, such as the German ‘Marsch für das Leben’ which organizes regular demonstrations against abortion in Germany since 2008. ²⁴ Other NGOs have a regular presence within international organizations, like Human Life International (VHI) and Alliance Defending Freedom (ADF), which offer ‘pro-life training and resources worldwide’ ²⁵ and provide legal representation to pursue cases. ²⁶

The strategies used in these anti-gender campaigns are not new, such as street manifestations. Lobbying, briefing and organizing side events during General Assembly meetings, summits or session periods are also common practices in international organizations. The ‘contact’ moments with representatives, experts and judges, however, have increased by the online presence of these organizations and articulated use of social media. The broadening of the public sphere has also taken these campaigns beyond street manifestations and conference rooms.

3. Speaking the language

Kovats and others argue that the most successful strategy of anti-gender movements is, in fact, the language they are using for political mobilisation. ²⁷ ‘Gender’ as a social construct is not (only) seen as contrary to religious precepts, but proclaimed as scientifically inaccurate, an ‘ideology’. ‘Gender ideology’ has turned, however, into an empty concept, adapting to contextual conditions. It becomes a moving target and acts as ‘symbolic glue’ ²⁸ . It includes LGBT rights (same-sex marriage, transgender rights), abortion rights, women’s participation, and even topics that seem cemented in the law, such as gender-based violence. In fact, the threat towards the prohibition of gender-based violence are worrying and go beyond the suspicions around the Istanbul Convention as Trojan horse for sexual diversity. In States where laws already permit same-sex marriage, such as Spain or Argentina, the very notion of ‘gender-based violence against women’ is under attack by campaigns that challenge the idea that women are the main targets of gender-based violence and posit that ‘anybody’, ‘also men’, can be victims. ²⁹

Gender and sex education in schools, and the protection of children from sexual exploitation and paedophilia is another issue falling under the ‘gender ideology’ umbrella, yet particularly from LGBT persons ³⁰ or, more recently, from ‘powerful elites.’ The protection of parental rights against ‘state interference’ and ‘government overreach’ is instrumental in this discussion. Moreover, the ‘family’ is no longer (only) associated with ‘values’ and object of protection, but conceived as subject of rights, an idea that historically resonates throughout the religious enclaves in the Americas, but could be gaining traction in Europe as well. ³¹

The ‘gender ideology’ discourse, however, goes beyond ‘gender and sexuality’ rights. For instance, a discursive turn took place in the 2015 OAS GA, when anti-gender groups no longer resorted to family values as justification, proposing instead to deal with really “urgent issues”, such as access to education, health, water, and defending democracy in Cuba and Venezuela. ³² In this regard, ‘post-feminist’ claims, or the idea that gender equality has been achieved can contribute to the view that there are other ‘more urgent’ issues to discuss instead.

The attention to democracy, however, is becoming a strategy itself. On the one hand, recovering the language of ‘values’, anti-gender campaigns claim to represent the values of ‘the majority’, as made evident by their names and the claim to look for the benefit of ‘all’ (‘Manif pour Tous’, ‘Demo fuür alle’). Political candidates engaged in the anti-gender crusade also appeal to ‘the majority’ forgotten by public politics. On the other hand, however, the boundaries of those ‘majorities’ are very much racialized. In the case of Hungary, anti-Semitic and anti-immigrants attitudes are also included into the discourse of ‘gender’. ³³ The right-wing populist Movement for a Better Hungary (JOBBIK) has proposed a total ban on abortions, strengthening the role of family, encouraging ‘responsibly conceived children’ among the ethnic Hungarians and discouraging the ‘gypsy breeding maintained by state funds’ to respond to the ‘the demographic crisis’ in Hungary. ³⁴

‘Gender ideology’ is also considered a threat to state sovereignty, constitutive of a new form of colonization promoted by global elites and international organizations against national values and traditions. ³⁵ In Poland “gender ideology” is depicted as a foreign-imposed threat to traditional family and national identity, ³⁶ even strengthening the narrative against the ‘liberal EU’. ³⁷ Similar concerns are raised in Hungary ‘against Brussels’. In the Americas, sovereignty claims are linked to the OAS and the UN, even discrediting Human Rights bodies. In this context, threats of cutting funding to international organizations arguing the incompatibility of certain policies with their own constitutional values, is becoming more common.

The political appeal of ‘gender ideology’ discourses is perceived in the increasing political endorsement in certain circles. As Scott explained in 1986, ‘gender’ is a lens to understand and question ‘signifying relations of power’, beyond gender and sex. Fassin warns us that the attacks against the ‘theory-of-gender’ can then be interpreted in those terms as well, allowing for an intersectional reading of gender that also sheds light on religion, race, class, and nation. ³⁸ This explains why it is explicit in the presidential speech of president Correa in Ecuador, the Presidential campaigns in Costa Rica and Brazil in 2018, the Civil-military ousting of Evo Morales in Bolivia in 2019, and has taken priority as public policy by the current far-right Brazilian president. Hungary and Poland have also followed this trend in Europe.

Besides the political implications discussed here, the replacement of religious justifications by a secular language, resorting to legal arguments that tend to misinterpret human rights norms or overstate certain conflicts of (human) rights has important implications for the discipline, touching on privacy and family life, parental rights, freedom of religion, freedom of expression, freedom of association, education, health. Moreover, while it is clear that the expansion of rights with respect to gender, sexuality and reproduction is not a linear process or free from controversy, Fassin argues that sexual politics throughout the world today (from gay marriage to violence against women, from the Islamic veil to prostitution, etc.) constitute battles about the limits, and on the contrary, the continued extension of the democratic logic. ³⁹ Current anti-gender campaigns contribute to the backsliding of gender equality and human rights, as well as the encroachment of democracy. The strategic use of legal language by anti-gender campaigns should be a warning to us, human rights scholars and defenders, to reaffirm what we have achieved in terms of gender equality so far, and protect these achievements from the challenges posed by these crusades.

4. Fortifying safe heavens?

The work of the human rights monitoring bodies seems so far more resilient to the anti-gender crusades. They have strengthened the monitoring of gender equality and promoted awareness in recent years, and there has been a slow yet sustained recognition and broadening of rights in relation to gender and sexual diversity. ⁴⁰ Even contentious topics such as sexual education in schools, abortion and reproductive rights, gender identity, or same-sex marriage have been addressed in case law and policy. Yet mindful of the characteristics of the current backsliding described in this column, human rights bodies could bolster these legal and policy achievements by strengthening some institutional practices. Reinforcing the cross-referencing the case law of the regional Courts, while still recognizing their binding effects is inter partes, and referring to other regional instruments that contain similar precepts can contribute to build up a consistent corpus juris on these issues. In addition, engaging with civil society proactively, for instance by offering training to communicators and grassroots organizations, or making case law more accessible to laypersons, could help to counter misconstructions and develop a better understanding of what gender truly entails: the knowledge that inequality is not ‘natural’.