Knop, Michaels, and Riles’s proposal was also to develop a feminist methodology to resolve the debate they describe as one between equality and multiculturalism. Although I frame the debate differently than they do, like them I do not come up with a resolution to the debate but rather develop a methodology for evaluating what equality means in relation to cross-border practices.125 I call it a feminist methodology because it focuses on women in evaluating the competing rights that are often in question in bans on immigrant women’s behavior.
When people, practices, and knowledge move across borders fluidly and quickly, we need to consider multiple contexts to design appropriate regulations to these cross-border practices. As noted above, American feminist legal theory might point to one context (the country of destination of the immigrant) while international human rights law may suggest another (the country of origin of the immigrant). A transnational legal methodology, because of its emphasis both on the international and the domestic/local,—encourages us to focus on multiple contexts in evaluating a ban in one country. Transnational law highlights the interactions of domestic laws and contexts in the increasingly global web of connections among people, corporations as well as goods, services, and knowledge.
To evaluate whether or not a practice is discriminatory or oppressive to women in the migrant-receiving country, we must examine that context. Social institutions, historic subjugation and inequality, and other factors give meaning to the practice as discriminatory to women. Researchers should investigate why the practice is considered to be discriminatory or repressive to women. Is it because the practice is widespread or is it because of unequal social institutions? What are the social institutions that reflect gender inequality? In addition, the scope and magnitude of the practice should be determined.
In order to properly understand the human rights consequences of a practice as it emerges in a new country, I suggest also studying the practice in the context where it first emerged. How widespread is the practice migrant-sending country? What are the individual motives of the women who undertake it? What societal institutions contribute to the practice? As I have noted, perceptions about cross-border practices are informed by knowledge often channeled through the sound bites of media rather than by in-depth studies in the country of destination of the migrant.
After understanding the practices in the two contexts (the migrant-receiving country and migrant-sending country), I propose a comparative study of these contexts. Do women undertake the practice at the same rate in both countries? Do the same social institutions give rise to the practice in the country of origin of the migrant exist in the country of destination? What (if any) societal factors present in the migrant-receiving country that give rise to the practice are absent in the migrant-sending country? Are there different factors in the migrant-receiving country that explain the reasons for the practice? Through this comparative study, we can better determine the human rights impact of the cross-border in the migrant-receiving countries.
Both quantitative and qualitative approaches are necessary to understand the practice in context. Even though traditionally feminist scholars had rejected quantitative methodologies,126 I embrace them and structure my own research in a way that takes into account the criticisms of the critical race scholars in regard to quantitative empirical study. Ascertaining the scope of the practice (i.e., how many migrants actually undertake the act) can best be done by quantitative methodologies. On the other hand, qualitative methods help understand the reasons why people engage in an act. The intent behind a person’s behavior is relevant to determine whether or not their behavior is discriminatory or violates human rights. To the extent that we can get honest responses, the best way to ascertain motives for behavior is by asking the people who undertake the behavior. This can be done through individual interview-based methods or through surveys of people that are representative of the entire group. Researchers may fail to undertake this survey-based research if they believe that the motives of immigrants in undertaking cross-border practices are the same as the motives for people who undertake similar practices in the country of origin of the immigrant.
Looking at the practice across multiple contexts helps to ascertain its human rights implications and also makes it possible to develop a legal test that can be used to evaluate bans across borders. The legal test should be transnational in its applicability, but must also be able to be used locally to implement solutions suitable to the context. Unlike universalist approaches, a transnational feminist legal approach is open to this possibility that a practice that appears to be harmful or discriminatory to women in one country context may not have that impact in another country context.
From an in-depth study of the context of the foreign country, it may also become clear that the knowledge and information about the foreign country is itself distorted. Knowledge is channeled through sound bites and stereotypes of foreign cultures as misogynist. In this narrative, women in some foreign countries are believed to be forced by men to undertake the practice and are viewed as being unable to make their own decisions or participate in any way in the decision-making process. Using comparative and empirical analyses, we gain accurate information about the multiple contexts in which a practice emerges.
My proposal is a pragmatic and realist approach that argues that a cost/benefit analysis be undertaken when there are competing rights at stake. When two competing rights are at stake, weighing the costs and benefits of bans may sometimes lead to the most meaningful solutions. The transnational feminist legal approach sees women’s rights through the global lens rather than the parochial domestic lens, but also proposes solutions that can be utilized in domestic policymaking.
The consequences of failing to contextualize and compare are grave. Policymakers will inaccurately understand and weigh the competing rights at stake in banning women’s practices. By emphasizing harms caused by a practice in another country, policymakers will overestimate the benefits of banning it in their own country. As a result, they undervalue the costs of a ban. Additionally, by relying on decontextualized explanations, policymakers fail to investigate the unique reasons and consequences of certain practices undertaken by immigrants. If policymakers examine the context in which the practice occurs and resist relying on the behavior and motives of people in other countries and the harms caused by practices in other countries, they will adopt policies that are more fair. If they do not, then they will adopt laws that harm women’s rights rather than promote them.
This book utilizes the transnational legal feminist methodology proposed in this section to evaluate bans on one cross-border practice—sex-selective abortion—from the perspective of women’s equality. Using the general principles of a transnational feminist legal approach that I articulated above, I develop a specific legal framework to assess bans on sex-selective abortion in Chapter 2. The goal of this legal test is to determine whether or not a ban on sex-selective abortion in any given context will promote women’s equality. My proposal is a feminist framework because it places women and girls at its center. I argue that the competing rights at stake in legal prohibitions on sex-selective abortion are the reproductive rights of women, on the one hand, and the harm that the widespread practice can cause to women as a group, on the other hand. The approach is contextual because it requires an evaluation of the way the practice is undertaken and its consequences in the geographic context where it is emerges. Under the framework, a ban might promote women’s rights on the whole in one country, but restrict it in another country.
In developing an approach to evaluate bans on sex-selective abortion, I engage with the spectrum of ethical views on the subject. Some oppose sex-selective abortion because they oppose abortion altogether. According to that perspective, no woman should have the right to an abortion, except in rare cases such as if it is necessary to save her life. Anti-abortion advocates see sex-selective abortion as sex discrimination against the fetus. Liberal feminists argue that sex-selective abortion should not be banned in any country since it impedes women’s autonomy. At the same time, they also believe that sex-selective abortion reflects discrimination in society against women and girls. Other feminists argue that while it should not be prohibited, it is morally problematic because those who obtain sex-selective
