Before I go on, I want to tell a story. During high school, I had an English teacher who often wore a pendant from the National Organization of Women. I asked her about it and we began a conversation that continued for years as she fed my voracious mind with Gloria Steinem, Alice Walker and other feminist literature. One day, on my way home from a meeting of Gay and Lesbian Youth of New York, I picked up the Village Voice and saw an announcement for a women's rights conference. My dad drove me into the city for the conference, which well over a thousand people attended. As part of the forum, individuals reported back from the 1985 World Conference on Women held in Nairobi. As people entered the hall, a slide show of conference photos ran alongside Helen Reddy's "I am Woman."1 Perhaps two or three men were there. Throughout the day, attendees approached me to inquire where they could find coffee or if I was in the right place. As a sixteen-year old boy with darker-than-average skin, I must have struck the attendees as some sort of coffee boy. Why else would I be there?
While I took no offense, this experience exposes the longstanding separatist tendencies of many women's rights efforts. Even recently, Gloria Steinem spoke at a conference at the University of Baltimore, saluting the women who have taken inspiration from her. (2) Although I may have thought that such assertions included the woman inside of me, and although I do not think Steinem meant to slight men, her statement was not only exclusionary, but also self-defeating. As a child and as an adult, I struggled with gender. I continue to explore gender, sexuality and the law in their many interactions. Yet, I hesitate to make the argument that women's rights are too narrow a focus for issues of gender equality and balance. Some may dismiss the argument because I am a man. Worse, feminists may think I belong to some reactionary men's movement and that I do not "get" the struggle at some core level. This troubles me because, in many ways I am just a big girl, and always have been. For this reason, this Article is not a purely academic exercise for me--my goal is to aid in the fight against gender inequality.
CEDAW, (3) signed on July 17, 1980 by sixty-four countries, has as its principal goals the protection and promotion of women's rights and the elimination of discrimination against women. (4) As of March 7, 2011, 186 countries--more than ninety-percent of the United Nations' member states--are parties to the Convention. (5) The most notable non-party to the Convention is the United States. (6) In addition, as of May 15, 2010, there are seventy-nine Signatories and ninety-nine Parties to the Optional Protocol, a supplement to CEDAW designed to remedy some of the treaty's shortcomings. (7) Although challenges have hobbled implementation of CEDAW, it remains the central pillar of gender equality norms at the international level. (8)
The Convention, despite its focus on women's rights, is also the preeminent treaty on gender inequality. It cannot succeed, however, in creating gender equality if it continues to focus so narrowly and exclusively on women. As Lady Macbeth gathers the strength to achieve her evil ends, she implores the spirits to "unsex me here." (9) She believes that her feminine gender obstructs the ability to commit evil. Only by "unsexing" herself will she be empowered to kill King Duncan. Viewing "unsexing" as part of Lady Macbeth's evil reinforces the objectionable set of ideas I seek to criticize. Although Lady MacBeth's "unsexing" is normatively opposite of what 1 seek here, CEDAW must also be "unsexed" to realize its potency.
It is amazing then to note that while CEDAW defines many central terms, at no point does it attempt to define its central subject, "women." At the time of CEDAW's adoption, the complexity of sex and gender was only recognized in a few contexts. CEDAW's focus on "women" enshrines the male/ female binary in the core of international law' when CEDAW's goals would be better served by seeking the elimination of the categories themselves. While more recent international law efforts have shifted toward a focus on gender and sexuality, (10) the Convention remains bound to "women's rights."
Strikingly, legal scholars have not directly targeted the centrality of the term "women" in CEDAW. Although it is beyond the scope of this Article to catalogue the oeuvre of feminist international law theory, any discussion of CEDAW must address the foundational book by Hilary Charlesworth and Christine Chinkin, The Boundaries of International Law. (11) This book addresses every relevant area of international law from a feminist perspective. (12) In doing so, Charlesworth and Chinkin demonstrate that international law has excluded women's concerns in many areas, including human rights and interstate relations. (13) Their conclusion is that international law should recognize these feminist issues generally and that feminists should "use existing mechanisms and principles wherever possible to improve women's lives." (14)
Many other scholars, notably Karen Engle, (15) Dianne Otto, (16) Janet Halley (17) and Lara Stemple, have been critical of various aspects of international women's human rights law. In particular, Halley has criticized feminist-influenced international law as "Governance Feminism," the engagement of feminist efforts in the governance of a wide variety of regulatory forms, from states to quasi-state institutions. (18) This anti-identitarian impulse is correct insofar as strict adherence to identity may lead to unintended consequences.
David Kennedy presents a much less sanguine vision of international human rights law (IHRL) than Charlesworth and Chinkin in The Dark Sides of Virtue. Although Kennedy admits that IHRL has undeniably accomplished many positive things, he alleges that it is riddled with hidden risks, costs, and unintended consequences. (19) This critique could easily apply to CEDAW. For example, Kennedy argues that efforts to attract the widest number of signatories to a treaty result in watered down, vague standards. These treaties do little to attack the causes of inequalities and divert attention away from a resolution of the problem. (20) In short, Kennedy does not view IHRL as a fruitful path toward resolving human rights problems, a critique which inherently includes CEDAW.
My goal is to strive for a middle ground between Charlesworth and Chinkin on the one hand, and Kennedy on the other, that encompasses use of the sharpest critical tools without dismissing CEDAW's aspirations. It is possible that CEDAW, as Kennedy would argue, not only fails to meet its drafters' goals, but also that it actually does more harm than good. To me, however, the Convention appears to foster connections among networks of nongovernmental activists, which lends strength to some gender equality efforts. Although I am not an outright positivist who believes in a direct causal link between legal goals and social norms, sometimes law may foster progress.
With regard to the project Charlesworth and Chinkin established, my goal here is not to argue against them or the feminist internationalism that their book represents. They take on women as their clients, with their singular goal the representation of women both as bystanders to interstate activity and as outsiders to rights protections. (21) This Article does not disagree with the descriptive assessment of women's place in international law, and my interpretation of CEDAW's shortcomings does not cut against their understanding of the import of "improving women's lives." (22) The disagreement is with the reason behind this inequity. Women face subjugation by the power relationship that establishes men as superior but more significantly from the division of humanity into two groups, one of which necessarily sits on top. Focusing only on "improving women's lives" serves to reinforce the very binary that must be dismantled to achieve change. This does not mean that women's lives do not merit improving--my problem is with the central and exclusive framing of the issue in this light. "Women's lives" cannot be improved until being a "woman" or a "man," or for that matter one of the many other sexes that exist, means less in terms of social, legal and political standing. This is the challenge posed to women-centered feminism by transgender movements (in the United States and elsewhere) and by Scandinavian feminism (which expressly seeks the reduction of gender differences). It is a challenge that has led to the Yogyakarta Principles, (23) a non-binding agreement of international law experts who specialize in sexuality and gender-related rights.
Here this Article attempts to turn that critique back on CEDAW. This study centers on a textual analysis of CEDAW, (24) and its goal is not to destroy or even undermine the Convention. Rather, this Article aims to force those of us who take sex and gender and even women's rights seriously to see the treaty for what it is: a sometimes useful tool of international law that's emphasis on "women" reinforces the sex binary. All this Article seeks is an admission of CEDAW's limitations.
Part I discusses why CEDAW continues to be relevant as the primary source of international law on sex discrimination. Until the advent of the Convention on the Rights of the Child (CRC), CEDAW was the most widely-subscribed international treaty. Some of the draft language of CEDAW reflects the tension between category and identity and how "women" won the debate. Part II contrasts CEDAW with the Convention for the Elimination of Racial Discrimination (CERD). (25) It points to the identitarian focus of CEDAW as a core reason for its failures. Had CEDAW reflected a category focus, as CERD did, it would more directly incorporate the breadth of sex discrimination. (26) Part III argues that CEDAW should include all sexes--CEDAW's focus on...