There is no doubt that the constitutional paradigm has expanded and diversified in its contents and orientations, moving from the liberal to the social, but this has not been enough to free constitutionalism from its gender bias. The relationship between subjectivity, rights and citizenship - one of the pillars of constitutionalism - has been as uneven as it has been neglected when it comes to women. Constitutions have not only been regularly written by men and for men; they have also allowed the masculine to become the true descriptor of the human and the political, and, by extension, the nucleus around which the constitutional paradigm orbits. This amalgamation of the legal and the cultural explains a paradox: with very few significant differences in the world, women regularly face great difficulties in benefiting from its material and symbolic implications in the same way as men.
The recent Chilean constituent process has triggered, among other expectations, one related to the possibility of correcting (or at least attenuating) this gender bias. The convergence between a strictly gender-parity drafting body and the revitalization of the feminist movement has encouraged the idea that the Chilean process could eventually "give birth" to a feminist constitution. This idea became so popular that it forced the Chilean academy to improvise a reflection on this "new constitutional species" which suddenly joined a taxonomy in which concern for women and feminism had been conspicuous by its absence.
In contrast, a still emerging literature examining the fruits of women's alliances and the yields of the application of feminist theories to the legal field has been postulating the emergence of a feminist constitutionalism. This is an innovative project, aimed at rethinking constitutional theory and praxis, incorporating the feminine experience as a transfiguring input, rather than treating it as a difference, a singular condition or an anecdote. Feminist constitutionalism does not consist in thickening the constitutional catalogs with new rights (something that Latin American constitutionalism has explored with little success), nor necessarily in saturating these normative texts with gender-specific clauses; it implies a transformation of greater depth: reinventing, in the light of feminist critical theories, the entire constitutional toolbox.
Starting with an examination of the Chilean constituent process, I would like to join this effort. I will argue here that a feminist Constitution -a key piece to structure a constitutionalism of the same strain- is molded through two successive and copulative movements: a) a political deliberation where female participation is guaranteed both in the granting of the constitutional text and in the subsequent development of its gearing; and b) a constitutional text whose contents and normative orientations have sufficient potential to transform the sex-gender system.
As I mentioned before, one of the aspects for which the Chilean constituent experience has attracted worldwide attention is related to the adoption of a gender-parity mechanism that guaranteed a strictly balanced composition of the drafting body. In the processes prior to the Chilean one, the threshold of female presence in constituent assemblies had been only around 30%. Seen from this perspective, the Chilean process is a radically innovative experiment, not only because of the gender-parity composition of the Constitutional Convention but also because of the feminist social mobilization that served as sediment and fuel.
The Chilean experience has provided invaluable evidence to answer questions that, until now, remained in the realm of speculation. Among others, what would happen if the presence of women were equivalent to that of men in a constituent body, what role does a robust feminist movement play, how does all this affect the range of issues discussed and their regulatory orientation, how much does it shift and reconfigure the boundary between the public and the private?
On the eve of the end of this process - and regardless of whether the text produced by the Constitutional Convention is ratified by the citizens or not in the next plebiscite - we have compelling evidence to support certain conclusions. The first and most important is that the composition of the bodies does matter a great deal when it comes to debating, drafting a constitution or adopting other major juridical-political decisions. In the Chilean case, the presence of women acted as a catalyst, crystallizing procedural norms that guided the work of the Convention, relating to the presidency of the plenary and commissions, the use of the floor, the prohibition of forms of harassment, violence and gender discrimination, and the reconciliation of public and family life.
Secondly, the Chilean experience showed that gender-parity rules unfold their full potential when fueled by feminist mobilization. This combination of factors can turn forgotten interests into protagonists, or even expelled from traditional constitutional politics. This is what happened with the sexual and reproductive rights clause (art. 61), which explicitly mentions, among other protected dimensions, access to abortion. This was approved by the plenary after being promoted as a popular initiative by a group of feminist organizations. Even though access to abortion is considered by international and comparative constitutional standards as a condition for the non-discriminatory exercise of reproductive rights, it is evident that a clause such as the one mentioned above could hardly have been approved by the constituted powers (still strongly masculinized), which have been openly reluctant to make abortion punishments more flexible, expanding the model of indications to a time limit model.
One of the most interesting aspects of gender-parity in the Chilean experience has been its plasticity and dynamism. The election of the Constitutional Convention, in which gender-parity ended up benefiting men more than women, sounded the first alarms about the risks of adopting a rigid vision. The Convention preferred instead a conception of gender-parity that was flexible in several senses. Although it cuts across the public apparatus (it reaches, according to Article 6.2, "all the collegiate bodies of the State, the autonomous constitutional bodies and the higher and executive bodies of the Administration, as well as the boards of directors of public and semi-public enterprises"), it operates as a floor for female integration (of at least fifty percent of its members), rather than a "ceiling", and is modulable, ranging from imperative to recommendable, depending on the type of body.
One of the greatest controversies on the scope and implications of gender-parity arose regarding its extension to the justice system, where it is combined with a mandate to apply a gender perspective regardless of the competence of the courts (arts. 312.1 and 3). Some have seen in this formula an excess, a threat to the principles of equality and impartiality that govern jurisdictional activity. However, there is sufficient evidence to show that it is gender biases that affect judicial impartiality and not the gender perspective that seeks to correct them. Such biases lie in masked, often unconscious, reasons that are used by courts as justifications for restricting or underprotecting women. The combination of gender-parity and the mandate to rule with a gender perspective suggests that the Constitutional Convention did not embrace the idea - controversial in empirical terms - that women, by virtue of being women, are likely to rule with a gender perspective. This idea is confirmed by the provisions of Art. 343, paragraph j) of the proposal, which instructs the Council of Justice (the new body in charge of judicial government) to "ensure the initial training and ongoing training of all officials and assistants in the administration of justice, in order to eliminate gender stereotypes and guarantee the incorporation of the gender perspective, the intersectional approach and human rights".
There is no doubt that gender is a common thread in the constitutional proposal. It is possible to identify in it, at least, 31 clauses that refer to issues related to women, gender-parity and gender perspective. But is it a text with transformative potential, and is it worthy of the label Feminist Constitution? In my opinion, yes, not only because of the presence of this dense fabric of gender-specific clauses, but also because these address the axes of the patriarchal structure (violence, discrimination, appropriation of women's work, inequitable distribution of care, procreation and sexuality) with a view to counteracting its effects. Even more important: because the text aims to universalize the female experience, marked by care and the management of dependency, instead of singularizing it. It recognizes care as a human condition, establishing, among other things, a universal right to care, to be cared for and to take care of oneself (art. 50) and conceives interdependence as a descriptor of individuals (art. 4), of the relationships between them, between peoples, and between one another and nature (art. 8); and as a characteristic of human rights as a whole (art. 17).
* Yanira Zúñiga Añazco holds a PhD in Law from Universidad Carlos III de Madrid and is a full professor at the Faculty of Legal and Social Sciences of Universidad Austral de Chile, where she teaches undergraduate and graduate courses on human rights and gender.
Email: yzuniga@uach.cl
[1] Translated from the Spanish by Andrea Balart.
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