This book explores 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.
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 decisionmaking 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 decisionmaking 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.
In the context of gender minorities, there is a history of pathologising gender minorities, especially for people who have any form of non-binary gender experience, like transgender people. This leads to an assumption of mental illness, and then to the assumption of poor decisionmaking skills. These assumptions diminish their decisionmaking power and then the decisionmaking power is removed from the individual.
For disabled women, assumptions of incapacity and a lack of decision-making skills, which relate back to eugenic eras understanding of disability and the role of people with disabilities within our society. As women are the reproductive powerhouses within a society, women with disabilities are more of a target for eugenics philosophy.A lot more needs to be done in this area. There is a lot of discussion on discrimination in relation to gender, but there is very little on examining where the law denies agency and personhood on the basis of gender. If laws are denying decision-making then it is denying power and this significantly contributes to inequality. This is a hidden side of gender inequality.
This research is based on extensive desk-based research. It is a blend of legal interpretation, legal research and socio-legal analysis. It first interprets international human rights law and then explores areas of the law that are not compliant with this definition. Followed by a socio-legal analysis of the history behind the non-compliance and potential violations of human rights law.
The Vienna Convention on the Law of Treaties provided a framework to interpret the text and the UN Committee on the Rights of Persons with Disabilities General Comment was used to define the right to legal capacity.
This research was desk-based, and so only draws on secondary sources and so does not include direct voices of women, disabled women and gender minorities. Empirical research would add to the depth and understanding of how women, disabled women and gender minorities are experiencing what is identified.
Arstein-Kerslake, Anna (2021), Legal Capacity & Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women, and Gender Minorities (1st ed.) Springer.