won the day in international human rights law and practice. Today, international human rights organizations are reluctant to deviate from the principle of universality because (among other things) it gives their positions great moral authority. They may also feel uncomfortable taking conflicting positions on the same practice (e.g., that veil bans are appropriate in one country, but not in another). Scholars and advocates resist deviating from universality as it implies the acceptance of cultural relativism, the only other alternative currently available. Thus, the thrust of international human rights discourse also leaves little room for finding that a practice is a human rights violation in one context, but not in another. In the next section, I outline a context-based feminist proposal to evaluate whether or not a practice that raises women’s rights concerns in one context also contravenes women’s rights when it is practiced in another country context.
Transnational Feminist Legal Approach to Cross-Border Practices
As Professors Bowman and Schneider explain, there is a deep engagement and positive feedback between feminist legal theory and lawmaking. Feminist legal theory was used to push for changes in laws to guarantee equality in the 1960s and beyond.112 For example, feminist arguments that pregnancy was an issue of gender equality led to new legislation known as the Pregnancy Discrimination Act.113 Litigation strategies and advocacy were also reflected in the work of feminist legal theorists. Catharine MacKinnon’s book, Sexual Harassment of Working Women, reiterates the legal theories about the harms of sexual harassment that had already been litigated by feminist lawyers.114
Liberal equality theory, dominance theory, and cultural feminism each had an important role in addressing and changing different types of discriminatory laws or in pushing for the enactment of laws to address women’s inequality where there were none before. Each of the strands of legal feminist theory was used to evaluate a law for the purpose of determining whether or not it promotes women’s position in relation to men’s position. While theorists might disagree about whether or not a law promotes women’s equality based on their perspective, their categories of analysis were typically men and women. Anti-essentialist feminist theorists soon pointed out that “women” as a category was too broad in conducting this type of legal analysis—it included women of many races, sexualities, and so on. Consequently, they argued that just because a law was thought to enhance equality for one group did not mean it would have that same impact on another group. I believe that to assume that similar policies would promote equality for women who are living in multiple country contexts is also to essentialize women.
Since the evolution of American feminist legal theory, the foreign-born population in the United States has grown significantly from fewer than 4.7% in 1970 to 13.1% in 2013.115 Migration is on the rise globally as well. Three times the number of people live outside their birth country in 2016 than did in 1960.116 Migrant-receiving countries are increasingly adopting regulations to address the behavior (or perceived behavior in the case of sex selection) of women immigrants and their progeny. Often knowledge of the practice as it is carried out in a foreign country informs policy decisions in migrant-receiving countries. But this knowledge is far from complete—it is packaged into sound bites sometimes filtered through stereotypes about the power dynamics between men and women in some foreign countries.
Feminist legal theory was created and evolved in the context of the United States. Liberal feminists pushed for facially gender-neutral laws and thought they would serve to equalize women’s position vis-à-vis men’s. Dominance feminism, on the other hand, is highly sensitive to the impact of a particular law in the context where it is adopted. Yet its methodology still calls for examining only the context where the law was adopted. Similarly, law and society scholars have long argued that context is important in understanding how law has developed, how it is enforced, and how it changes.117 But their focus generally was also on the context where the law was proposed to be adopted and not on any other context.
Cross-border practices push us to examine contexts beyond the one where a law is being proposed to be adopted. In understanding cross-border practices, I argue we must gain a better understanding of the country context where the practices originate through in-depth empirical analysis. It is only through broadening our gaze to these multiple contexts that we can recognize how practices change meaning with context. Professor Bennoune as well as the critics of governance feminism recognize that context can radically change the human rights impact of a practice and therefore the legal response to a practice should differ depending on the circumstances. For example, a practice like the veil, according to Bennoune, should be banned to promote women’s equality in one context, but need not be banned in another context for that reason.
Another theoretical lens that informs how social justice advocates understand cross-border practices is international human rights law. There is a growing movement in the United States to use international human rights norms and accountability mechanisms to push for social change.118 Nongovernmental organizations increasingly participate in UN institutions by writing shadow reports, hosting panels and speakers alongside major UN conferences, and writing reports that utilize international human rights laws and norms. In other countries like France, which I discuss in Chapter 7, regional human rights conventions provide an even stronger basis for individuals to challenge domestic laws.
While American feminist legal theory would focus on the context where a regulation is being considered, in evaluating cross-border practices through the lens of international human rights law, one might be tempted to focus on the context of the country of origin of the migrant. The universal perspective of rights suggests that once it is determined that a practice violates human rights in one context, it will be a rights violation (since rights are constant across geographies) when it emerges in another context. Indeed, the UN’s major policies on sex-selective abortion address it only in contexts where it first emerged like China and India and not in the United Kingdom or the United States where migrants from Asia are thought to practice it.119 The international human rights perspective does not necessarily encourage scholars and policymakers to deeply examine the migrant-receiving country context in evaluating regulations on cross-border practices.
On the other hand, the insights of the field of transnational law can be used to draw attention to the importance of both the migrant-receiving and migrant-sending context in evaluating whether a regulation on immigrant women’s behavior will promote equality or contravene it.120 Since Philip Jessup conceptualized “transnational law” in 1956, a vast literature within that field has emerged.121 Harold Koh’s insightful article explains that transnational legal process is the interaction of domestic norms with international norms.122 Carrie Menkel-Meadow describes “transnational law” as the study of legal phenomena, including lawmaking processes, rules, and legal institutions, that affect or have the power to affect behaviors beyond a single state border.123 The concept encompasses a growing web of global connections. Transnational law, however it is defined, is certainly distinct from international law, which governs the relationships between states/countries.
In a way it may be fruitless to attempt to define the substance of transnational law. Professor Zumbansen’s recent work describes transnational law more as a methodology. He notes:
Going beyond early work in international legal theory and partly drawing on the insights from transnational commercial law, we can begin to understand transnational law primarily as a methodological approach and less as a distinctly demarcated legal field, such as contract or administrative law. Transnational law, from this perspective, emerges foremost as a methodological lens through which we can study the particular transformation of legal institutions in the context of an evolving complex society.124
Drawing on this understanding of transnational law, I propose a transnational feminist legal methodology. This methodology provides a way to sort through questions about women’s equality on a global scale. It proposes a global framework that can be utilized to provide
