and family. The form of feminism, which reacted against such laws, is often referred to as “liberal feminism.”
In the 1970s, court victories erased many formal gender-based distinctions in the law. One prominent example is the case of Reed v. Reed where the U.S. Supreme Court found a statute that permitted only men to be executors of an estate unconstitutional.71 It should be noted that liberal feminists would advocate changing not only laws that seem to benefit only men, but also laws that benefit only women. For example, they helped in eradicating the “tender years rule” that gave women preference in child custody cases.72 These feminists emphasized women’s similarity to men. Most liberal feminists would not push the law beyond formal equality with men.
In liberal feminism, context is not very relevant in questions about laws and women’s equality. Making laws gender neutral and ensuring formal equality is assumed to promote women’s equality regardless of their impact on society. That is, liberal feminists assumed that giving women the same rights as men would translate into women’s equality. It was difficult for them to contend with biological differences where equal treatment could be disadvantageous to women.
Taking feminism in new directions, scholars emerging in the 1980s emphasized women’s differences from men and proposed that any evaluation of laws and policies should take that fundamental notion into account. Taking their cue from Carol Gilligan’s work, cultural feminists found that women’s behavioral differences were tied to their sex.73 Critics of cultural feminism argue that sex “essentializes” women’s behavior.74 While these feminists took into account social context, it was mostly fixed—all women shared certain traits and they were different from those of men.
Anti-subordination legal theorists also emphasized the difference between men and women. Men’s and women’s different roles and privileges in society contributed to women’s inequality. If men and women were not equal in society, then treating them the same in the law would not necessarily promote equality. These scholars believed that gender was socially constructed rather than fixed. According to a prominent anti-subordination theorist, Catharine MacKinnon, women’s inequality in society was the result of oppression by men, not biology. MacKinnon’s approach rejects the idea that men and women should be treated identically. Instead, she believes that in some cases identical treatment can lead to subordination. These theorists would be willing to deviate from formally equal laws if they will benefit women in practice.
Even though the impact of laws must be evaluated within the social context, MacKinnon’s theory did not imagine social context to vary so significantly. Her theory is animated by the assumption that society is defined by male dominance over women. In her view, the legal system was principally designed to perpetuate male dominance over women. Sexual abuse and sexual relationships were the fundamental ways in which women were oppressed. Consequently, even under dominance theory, if a policy promotes women’s equality in one country context, then it would be assumed to have the same impact in a different country context.75 Thus, these feminist legal theories did not seem to conceive of the possibility that a practice could be oppressive to women in one context, but not oppressive to women or neutral to women’s equality in another geographic context.
The anti-essential feminist theorists’ critique of the dominant strands of feminism in the 1990s is also relevant here. Those theorists have argued that the dominant feminist understandings were shaped by the concerns and goals of a very specific class of women. Some feminists called this essentialism “false universalism,” where the unstated norm is the white, middle-class, heterosexual woman.76 Angela Harris, for example, argued that Catharine MacKinnon’s understanding of rape ignored the experiences of black women for whom rape is linked with gender and race.77 She also argued that the motherhood experience varies for women of different races.78 Other scholars have pointed out that mainstream feminist legal theories have largely ignored lesbian women and assumed that their experiences are the same as those of heterosexual women.79 These theorists’ basic point is that women differ on the basis of race, sexuality, class, and other things. To treat them the same is problematic for a host of reasons, including the fact that policies developed around white middle-class women’s experiences do not necessarily apply to all women.
Race is the lens often used for analysis and critique in critical legal studies, but Indian American women and Indian women living in India are arguably of the same “race.” Scholars have pushed anti-essentialist feminist theory further to acknowledge that even those two groups of women should be distinguished. Consequently, an anti-essentialist feminist view would posit that a policy solution designed to address women living in India would not necessarily be appropriate for women living in the United States who are of Indian descent.
Context in Critiques of Governance Feminism
Janet Halley, Chantal Thomas, Hila Shamir, and Prabha Kotiswaran’s main goal in their groundbreaking article in 2006 was to describe a trend in international and humanitarian law where a certain form of American feminism (primarily dominance theory) infuses international institutions, as well as the discussions and negotiations of international treaties. They label this type of feminism “governance feminism.” Their critique does not explicitly argue that governance feminism is problematic because it is insensitive to country context, but the threads for this argument are present in their work. I develop those threads in support of my argument that a practice can call for a radically different response in different country contexts.
Critics of governance feminism do not necessarily oppose the influence of domestic feminism on the international realm; rather, they appear to disapprove of the fact that only a certain form of feminism is elevated to the international realm. Their critique is important because it is the first to identify how feminism (and specifically a certain brand of it) has been exported from the United States to international institutions and then transposed to the domestic level in other countries.
Although the critics of governance feminists do not expressly point to the importance of context in designing policy solutions on women’s rights, it is clear that they view geographic context as important. First, Halley points out that it is problematic to use radical feminist understandings of rape, which were developed in a non-war context, in war situations. She argues that the Kunarac case before the International Criminal Tribunal for the former Yugoslavia is an example of where this was done. The defendant in that case was convicted for the rape of a woman he transported out of detention. The court assumed that she did not consent to the sex, because it occurred in a war-like setting. Here Halley sees the imprint of radical feminists, who “have long argued that, in rape trials, force, resistance, and consent/non-consent are the wrong issues of coercive circumstances.”80 Imposing what she calls radical feminist views in the war context could lead to overenforcement, because any sex in a war setting could be considered rape.
Second, Shamir’s case study suggests that regulations on sex work might be appropriate in one context but not in another. She notes that governance feminism, “well-intentioned as it may be—is pre-loaded with a strong tendency to overlook or underplay the costs it might cause to some and fix its gaze on the benefits gained by others.”81 She expands on this by arguing that it is necessary to focus on the impact a policy has on many groups in determining whether or not to adopt it; she then analyzes the policies of several different countries on sex workers in those countries.82 Shamir applies a cost/benefit analysis to evaluate policies concerning sex workers in three different countries. Engaging in this type of balancing test assumes that policy solutions to women’s equality issues are not fixed and can vary with the context.
Third, Thomas’s case study of the negotiations of the international agreement on trafficking (Palermo Protocol) can be interpreted to illustrate the problems that ensue when feminist approaches to laws in one country context are transposed to another country context. Thomas describes the dominant strands of feminist thought on sex work and observes how they have manifested themselves in the negotiations of the Palermo Protocol.83 These feminists, drawing inspiration from MacKinnon, argued that all sex work is trafficking because it enforces subordination of women by men. Thomas describes these views as follows:
Women are prostituted precisely in order to be degraded