Legal Capacity and Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women, and Gender Minorities
Based on:
Book/Ebook (2021) ↗
This research draws attention to where the law is denying decision-making on the basis of gender, and closely examines women, disabled women and gender minorities.
Brief by:
This research explored the role of gender in the recognition of an individual’s legal capacity. It discusses the meaning of the right to legal capacity and its two core elements – legal personhood and legal agency. It then analyses historical and modern denials of personhood and agency experienced by women, disabled women, and gender minorities – for example, prohibitions from voting, limitations on contracting, loss of personhood upon marriage, and gender binary requirements leading to an inability to exercise legal capacity, among others.
The denying of decision-making refers to where decision-making is implicitly or explicitly denied based on how the law is structured. This book tries to define what the right to legal capacity is, and then identify specific areas of the law, where agency is denied on the basis of gender.
Key findings
An example of how the law might implicitly disregard and deny female agency is the criminalisation of sexual activity for disabled women within several countries.
While the reasons given for these types of law is often 'protection', the result is a denial of sexual agency for disabled women. And so any sexual activity that they participate in could be criminalised and their sexual parter could be prosecuted.
Denial decisionmaking on the basis of gender happens in very explicit ways too.
For example in Saudia Ariabia, amongst other countries, women have different inheritance rights than men do. This illustrates a partial denial of legal personhood of women, so their recognition of legal personhood is subordinate to men and they're then granted less inheritance rights on the basis of this. Another example is guardianship mechanisms of women, which strips legal capacity solely on the basis on gender.
Less obvious examples includes women who are forcibly treated in mental health systems and the unique experiences that those women have.
The forced treatment experiences of women are a denial of their decision-making rights, and thus a denial of their legal capacity. While its not explicitly stated in the law that you can allow forced treatment at any different level to men, it still occurs in a significantly different way. This shows the differential treatment of legal decision-making and how it is occurring.
For women, this might occur due to a historic myth of hysteria, which might still impact our laws, policies and practices relating to women.
Proposed action
Research and reform in this area must be led by women, disabled women and gender minorities, and / or their representative groups
Undertake an analysis of law policy and practice in light of the definition of the right to legal capacity, and with a focus on gender
Once reform process is underway, then there needs to be extensive consultation with women, disabled women and gender minorities
The final recommendation is to ensure reform is undertaken
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Legal Capacity and Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women, and Gender Minorities
Cite this brief: Arstein-Kerslake, Anna. 'Legal Capacity and Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women, and Gender Minorities'. Acume. https://www.acume.org/r/legal-capacity-gender/
Brief created by: Dr Anna Arstein-Kerslake | Year brief made: 2021
Original research:
- Arstein-Kerslake, A., Legal Capacity and Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women, and Gender Minorities https://doi.org/10.1007/978-3-030-63493-3. – https://link.springer.com/book/10.1007/978-3-030-63493-3
Research brief:
This research draws attention to where the law is denying decision-making on the basis of gender, and closely examines women, disabled women and gender minorities.
This research explored the role of gender in the recognition of an individual’s legal capacity. It discusses the meaning of the right to legal capacity and its two core elements – legal personhood and legal agency. It then analyses historical and modern denials of personhood and agency experienced by women, disabled women, and gender minorities – for example, prohibitions from voting, limitations on contracting, loss of personhood upon marriage, and gender binary requirements leading to an inability to exercise legal capacity, among others.
The denying of decision-making refers to where decision-making is implicitly or explicitly denied based on how the law is structured. This book tries to define what the right to legal capacity is, and then identify specific areas of the law, where agency is denied on the basis of gender.
Findings:
An example of how the law might implicitly disregard and deny female agency is the criminalisation of sexual activity for disabled women within several countries.
While the reasons given for these types of law is often ‘protection’, the result is a denial of sexual agency for disabled women. And so any sexual activity that they participate in could be criminalised and their sexual parter could be prosecuted.
Denial decisionmaking on the basis of gender happens in very explicit ways too.
For example in Saudia Ariabia, amongst other countries, women have different inheritance rights than men do. This illustrates a partial denial of legal personhood of women, so their recognition of legal personhood is subordinate to men and they’re then granted less inheritance rights on the basis of this. Another example is guardianship mechanisms of women, which strips legal capacity solely on the basis on gender.
Less obvious examples includes women who are forcibly treated in mental health systems and the unique experiences that those women have.
The forced treatment experiences of women are a denial of their decision-making rights, and thus a denial of their legal capacity. While its not explicitly stated in the law that you can allow forced treatment at any different level to men, it still occurs in a significantly different way. This shows the differential treatment of legal decision-making and how it is occurring.
For women, this might occur due to a historic myth of hysteria, which might still impact our laws, policies and practices relating to women.
Advice:
Research and reform in this area must be led by women, disabled women and gender minorities, and / or their representative groups
- Of course, this doesn’t mean we can’t pursue reform unless those groups are leading it. But once reform is instigated, leaders from these groups need to be sought.
Undertake an analysis of law policy and practice in light of the definition of the right to legal capacity, and with a focus on gender
- So where legal decision-making is essentially being denied on the basis of gender or is having a differential impact on women, disabled women or gender minorities.
Once reform process is underway, then there needs to be extensive consultation with women, disabled women and gender minorities
- This is in addition to the leadership, as leading the reform and consultation are different.
The final recommendation is to ensure reform is undertaken
- To begin the reform process. Be careful to not stop at the point of only identifying where legal capacity and legal decision-making is denied for women, disabled women and gender minorities.