Legal Capacity from a Gender Perspective - PowerPoint Presentation

Slide1

Legal Capacity from a Gender Perspective

Tina MinkowitzSlide2

Overview

Uniform standard and meaning of legal capacity

Feminist values and inspiration

Autonomy and relationships

Making violations visible

Women and girls with disabilities – intersecting discriminationSlide3

CRPD and CEDAW

CEDAW Art 15

Equality before the law

Identical legal capacity of women/men

Civil matters – contracts, legal proceedings, domicile

Can’t be waived by private agreement

CRPD Art 12 builds on CEDAW Art 15

Universal attribute – reshapes understanding of legal capacity by including PWD

Support for equal enjoyment

Measures must respect will and preferences

All aspects of life – can encompass criminal liabilitySlide4

Standard under CRPD

Universal attribute (GC1 ¶ 25)

CEDAW Art 15 applies to women with disabilities (GC1 ¶ 35)

No denial of legal capacity based on disability status, anticipated outcome or assessment of “mental capacity” (GC1 ¶¶ 15, 29i)

Right to legal capacity not contingent on acceptance of support (GC1 ¶¶ 19, 29g)

“Best interpretation of will and preferences” (GC1 ¶ 21)

Legal capacity interacts with other fundamental rights: access to justice, liberty, integrity, privacy, sexuality and parenting, work, adequate standard of livingSlide5

Women/Girls Deprived of

Legal Capacity

Older women

Women with psychosocial disabilities/ users and survivors of psychiatry

Women with intellectual disabilities

Women with physical and sensory disabilities

Girls with disabilities

Women in conflict with the lawSlide6

Older Women

Institutional living arrangements where staff decide placement and eligibility based on medical assessment and “mental capacity”

Informal or formal support relationships with adult daughters, with guardianship as potential threat no obligation to respect autonomy

Worldwide inequitable access to resources

Women outlive men, spend longer period of life in these circumstancesSlide7

Women with

Psychosocial Disabilities/

Users and Survivors of Psychiatry

Labeling and

medicalizing

of our experiences – denies ownership of our own life narrative, violates privacy and freedom of thought

Locked up, handcuffed, tied to beds, solitary confinement, forced drugging, forced nakedness, rape, degrading conditions – we are put under control measures while violent perpetrators go freeSlide8

Women with

Psychosocial Disabilities/

Users and Survivors of Psychiatry 2

Violations are said to be “good for us” – expectation to enter into compliant relationship with perpetrators – enacts and reinforces gender

oppression,

also colonial

oppression

Support needs suppressed or channeled into relationships of dependency and control

Peer support draws on feminist consciousness-raising, “hear each other into speech”Slide9

Women with Intellectual Disabilities

Infantilized and denied opportunities to learn and gain life experience

Sexuality suppressed and punished – including through forced psychiatry (e.g. electroshock and lobotomy), forced sterilization and medical treatment to prevent physical maturitySlide10

Women with Physical

and Sensory Disabilities

Carers

assert control or arrange things for their own convenience

Corrective surgeries without informed consent

Ignored and treated as incapable due to others’ discomfort or inability to accommodate communication needsSlide11

Girls with Disabilities

Drugged for behavior control, removed from family and made wards of the court – girls

psychiatrized

and criminalized for sexuality, aggression, assertiveness, being Black, being LBT, needing support after being raped or otherwise abused

Not allowed to mature physically

Not prepared for adult responsibilities and choicesSlide12

Women in Conflict with the Law

“Jury of her peers”

Victimless crimes and crimeless victims

Relationship to the state: seek its protection, change from within, avoid?

Catharine MacKinnon, Towards a Feminist Theory of the State (1989)

Peacemaking circles – fostering right relationships – potential for egalitarian justice….

Kay

Pranis

et al, Peacemaking Circles: From Crime to Community (2003)Slide13

Generally

Exclusion from traditional female roles:

Loss of parenting rights, forced abortion and sterilization, disabled women “not marriageable”

Exclusion from full legal capacity defined on male norm:

Legal and social limbo of women declared incapable, put under guardianship or incapacity-based control measuresSlide14

Impact of Female Socialization

Conflict between female socialization based on relationships and expectation that legal agent exists in absence of any pre-defined relationships

Exercise of agency under oppression, resisting oppression, role models and lack of role models

Responsibility prior to or in absence of self-determination

Self as abstraction; relationships as vulnerability and strengthSlide15

Gendered Legal Capacity

and CRPD Approach

Free will, finances, sexuality, aggression and assertiveness, political participation and leadership – male prerogatives?

Relationship and support – female responsibilities?

Vision:

Conceptualization of legal capacity as a right held open for everyone, its exercise and practice as fluid

Equal availability of *opportunities and *support to exercise legal capacity

Countering meta-narratives that stereotype women, girls, boys or men with disabilities as incompetent, dangerous, dependent, irresponsible, etc.Slide16

Gendered Legal Capacity

and CRPD Approach 2

Women with disabilities lead the way:

Peer support/ egalitarian-mutual relationships

Judi Chamberlin, On Our Own (1988)

Shery

Mead,

www.intentionalpeersupport.org

Support is messy, warm, creative

Reshma

Valliappan

,

http://thereddoorproject.wordpress.com

Need for self-care and time alone

Not throwing anyone away

Tonier Cain,

http://healingneen.com

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Contact and Resources

tminkowitz@earthlink.net

http://ssrn.com/author=1348856

www.chrusp.org

www.wnusp.net