Gender Stereotyping: Transnational Legal Perspectives (review)

I have focused on domestic law almost the entirety of my career.¹ I was recently confronted, however, with how intimately the domestic law and international law might interact when I examined the United States case of Town of Castle Rock v. Gonzales,² regarding the enforcement of protective orders in domestic violence contexts. The facts of this case are also the basis for Jessica Gonzales v. United States,³ submitted to the Inter-American Commission on Human Rights. Human rights Conventions, such as the International Covenant on Civil and Political Rights (ICCPR)⁴ or the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW),⁵ may provide new insights and avenues to address the injustices presented and permitted by US domestic laws and the interpretations of these laws. Although the United States Supreme Court found no due process violation in the failure of the state to protect⁶ or even to follow up in the instance of a validly issued state protective order,⁷ international conventions could provide greater protection by requiring “due diligence” in fulfilling the state’s obligation to protect its citizens. Writing about this case enlightened my perception of the divergences and commonalities between International Human Rights law and the domestic laws of the various nation states. Plainly, Gonzales is a case where the United States would benefit from an account of alternative norms. The US should be a leader in creating new norms that better diminishes gender stereotypes rooted in concepts of women as property,⁸ instead of reaffirming those stereotypes.

Gender Stereotyping⁹ by Rebecca Cook and Simone Cusack directly addresses the global uses of gender stereotypes that perpetuate the subordinated status of women. The wisdom and guidance within its covers is of great value and relevance to the Gonzales case:

The general obligation to protect requires States Parties to take appropriate measures to address violations by non–state actors, such as the family, the community, and the market. The obligation to protect women against wrongful forms of gender stereotyping by non-state actors includes undertaking ongoing awareness-raising regarding biases and prejudices against women, applying sensitizing, preventive, and other appropriate legislations, policies, or programs, introducing effective procedures in response to complaints against non-state actors, and implementing appropriate remedies to redress wrongful forms of gender stereotyping.¹⁰

Gender Stereotyping is especially timely in that my “epiphany” is not unique. There seems to be a growing trend amongst lawyers trained in the United States, as well as in other nations, to make that connection not only apparent, but one that is effective for facilitating change. For example, there is an increasing number of lawyers, from a variety of locations, who work with the “Bringing Human Rights Home Lawyers’ Network.” ¹¹ This project encourages United States compliance with international human rights law, including through the United Nations and Inter-American Human Rights systems and the development of strategies to use human rights law in US courts and legislatures.

Gender stereotypes are ecumenical and entrenched in astoundingly consistent ways across locations. They have had an integral role in the enduring nature of all forms of gender discrimination and subordination. Stereotypes may have different content in accordance with the relevant country and context, as well as pervade a cross-section of national life, in education, employment, health, family relations, or other areas of life. With this in mind, the elimination of gender discrimination and the role of state actors in this process is the central purpose of Gender Stereotyping. Gender Stereotyping draws on both domestic and international law, and uses the judgments of the courts and human rights treaty bodies to suggest ways to eliminate gender stereotypes and, ultimately, women’s inequality by utilizing the transnational legal process. Gender Stereotypes makes the connection and relevance between domestic law and international law in a fluid and productive manner. Its approach is one that attempts to fully address the complexities of global realities as international law tries to navigate differences...