Unisex CEDAW? No! Super-sex it!(United Nations Convention on the Elimination of All Forms of Discrimination Against Women) (response to article by Darren Rosenblum in this issue, p. 98)

• Author: Hernandez-Truyol, Berta Esperanza

Injustice and discrimination against women persists everywhere. (1)

In no society do women enjoy the same opportunities as men. (2)

Unemployment hits poor families hard, regardless of whether it is a man or a woman who is laid off.... [But] women's lower employment rates, weaker control over property and resources, concentration in informal and vulnerable forms of employment with lower earnings, and less social protection, all place women in a weaker position than men to weather crises. (3)

Recalling that discrimination against women violates the principles of equality of rights and respect for human dignity, is an obstacle to the participation of women, on equal terms with men, in the political, social, economic and cultural life of their countries, hampers the growth of the prosperity of society and the family and makes more difficult the full development of the potentialities of women in the service of their countries and of humanity. (4)

INTRODUCTION

This Article reflects upon Darren Rosenblum's provocative piece Unsex CEDAW, or What's Wrong with Women's Rights. At the outset I should note that this critical analysis should not be misinterpreted. I do not quarrel with Professor Rosenblum's observations that inequality in law and life is much broader than sex inequalities. To the contrary, I am in full accord with him that discrimination along other categorical axes is also undesirable and sometimes as prevalent as sex inequality. Indeed, oftentimes such other discriminatory tendencies dovetail with those rooted in sex discrimination. (5)

Where we diverge, however, is in his proposal that the category woman, and the pursuit of equality rights utilizing a focus on sex, be eliminated altogether. He claims it is wrong to focus on women's rights. Yet even in that regard I think our differences could be framed as methodological rather than substantive. Professor Rosenblum suggests that we unsex CEDAW and that the convention focus on gender in lieu of sex. Moreover, he posits that any consideration of discrimination on the basis of sex include men as well as women. I agree that the convention ought to protect against discrimination on the basis of gender as well as sex. Moreover, there is no question that the category sex includes men as well as women, although it is incontrovertible that the aim of CEDAW was to protect women because of the privations women experience in their lives--a reality around the world, north and south, east and west alike. Thus, our disagreement is narrow and centers on the ongoing relevance and significance--indeed, necessity--of the category woman.

In this response I grapple with this narrow point: it is not only relevant but necessary to continue to have women, qua women, be an organizing category. To be sure, "woman" is not a singular, essential category. (6) I have already suggested that "woman" should not be the sole category for analysis. Moreover, while I contend that the category "woman" should not be--indeed cannot be--monolithic, I urge that such a category should remain among the myriad classifications relevant to rights discourse; to conversations about marginalized, subordinated, or peripheral actors in the local as well as the world stage.

This position does not equate to a blind concession that CEDAW is perfect; it is patent that it is incomplete. However, one should not fall into the trap of (forgive the cliche) throwing the baby out with the bathwater. There are ways to achieve Professor Rosenblum's goals while still recognizing the realities of women's lives.

1. FLASHBACKS

   1. Senior year in high school, college application season:

      I was born in Cuba and raised in Puerto Rico, where I attended high school. My parents were educated at the University of Havana. So when it was time to fill out college applications, Mr. Wedge--Ernest Wedge, the headmaster at my school--was the only one who could provide any guidance and advice with respect to attending college in the U.S.

      When I met with Mr. Wedge to discuss college choices, he suggested that I apply to Cornell through its early admissions program. He wanted me to go to an Ivy League school--not that anyone in my family had a clue what that meant. But, as he was the expert, his desires were faits accomplis.

      Notwithstanding my healthy, youthful skepticism, once he explained what early admissions meant, I really thought he was up to something good. Any sixteen-year-old would prefer to fill out one application instead of a bunch of them--especially when her then-boyfriend was coming home for the weekend from MIT and the plan was to go sailing. What sixteen-year-old wouldn't choose sailing if there was an option? So I happily went home thinking that it would be one form, not six, that I had to complete. But then I read the directions in the Cornell forms, which clearly stated that early admission was only for boys. Deflated and resigned, I would not get to play much that weekend, I proceeded to fill out six forms..

      On Monday I went to report my discovery to Mr. Wedge. Mind you, I was not shocked by the exclusion; I took it as a fact of life. Mr. Wedge, however, did not believe me. He called the admissions office at Cornell to inform it that I had made a mistake in my application--that it should have been for early admissions. He was quickly told that it could not be done; early admissions was only for boys.

   2. As a lawyer in Washington working for the Federal Government:

      A friend working at a firm called me to let me know there was an opening for which she thought I would be a perfect candidate. Not one to close doors, I went to an initial screening interview, then to a full day interview, and finally on the call-back to meet the "big partner" with whom I'd be working most closely. In the course of the "big partner" chat he said, and I am paraphrasing as closely as I can recall, "so I am not sure that it is the proper place for a girl to work with labor leaders who smoke cigars and use foul language." Unlike my reaction in high school, this time I was upset. At that point I knew I was not going to get the job; I did not care because at that point, I did not want it. However, the kicker came when I told my mom (who is a lawyer and diplomat by training) and dad the story. My dad quickly said, "Didn't you tell him you are not a woman, that you are a lawyer?" This from the same man who just a few weeks earlier had been considering whether he could make an offer to the best candidate he interviewed for a job because she was a woman. The catch there was that he was concerned whether the clients (read: men) in Latin America would accept dealing with her because she was a woman.

      And although that was some time ago, and I doubt many legal employers would be so vocal about a similar situation today even if they still felt the same way, the landscape has not changed. I still regularly get stunned female students coming into my office, aghast that during their interviews, they were asked about plans to get married or to have children. Many of these women report that their male friends do not experience the same inquiries. Sexism persists, particularly sexism against women.

   3. While interviewing for law teaching positions:

      I was in a major city at an on-campus interview when, after an apparently successful visit, my host, a lovely gentleman, led me to his office and offered me a cup of coffee to wind down a "terrific day." I accepted, requesting decaf. He went to get the coffee. While he was out, another member of the appointments committee came in to his office and said "I hope Joe doesn't mind that we voted without him but we'd like to make you an offer so let me take you to the Dean." In the meantime, my host entered his office and was told about the vote. He said, "Terrific day indeed." As he handed me my cup he said "you know, I don't think of you as a minority." Woman is not a monolithic category. (7)

      This Article first addresses the ongoing relevance of the category "woman." To support that stance, in Part II the piece presents data on women's status today; it shows how women currently remain in precarious positions around the world simply because they are women. Next, there is no doubt that discrimination's reach is greater than just women--there are also the categories of race, class, sexuality, and gender to name a few of the axes along which there is rampant disparity in status, dignity, and respect. Thus, Part III suggests certain interpretive tools that can result in a broader deployment of CEDAW's protections which, in turn, could expand the reach and utility of CEDAW. Such a move would provide some, although not all, of the relief that Professor Rosenblum desires.

      Finally, in Part IV, I acknowledge that, notwithstanding the suggested interpretive tools, the Convention would better serve humankind if its provisions were more far-reaching. Consequently, this work proposes that rather than giving up on CEDAW, it should be amended by protocol to expand its reach. The proposal encourages an incorporation of principles, much like the Yogyakarta Principles ("Principles"), as a second optional protocol to CEDAW.

      The work concludes that the inquiry into whether the category woman is one that should be valid in an ideal world is not ripe in today's world. People who are perceived to comprise the category "woman" are less likely to enjoy the trappings of full personhood. Thus at present, the reality about the condition of women around the globe translates to it being a necessary category, albeit a non-monolithic, non-essentialized one.

2. The Ongoing Relevance of "Woman"

   This Part's goal is to show, in light of facts about the condition of women around the world, that the category "woman" remains essential. This portion of the Article utilizes two general sources: one, a rich complex of information presented by the Secretary-General of the United Nations on the occasion of the celebration of International Women's Day; two...