Hope Lewis, Professor of Law, Northeastern University School of Law. J.D., Harvard Law School, 1986, A.B., Harvard University, 1983. This essay originally was presented in October 2000, as part of a symposium on "The Feminization of Poverty" sponsored by THE JOURNAL OF GENDER, RACE & JUSTICE. My thanks to Hiroshi Motomura, Lucie White, and Adrien K. Wing, who commented on the panel presentations, the staff of THE JOURNAL OF GENDER, RACE & JUSTICE, and the other organizers of the symposium. Kerry Rittich, Odeana Neal, Margaret Woo, Pemela Bridgewater, Ibrahim Gassama, James Hackney, Makau Mutua, Blossom Stephenson, and Leti Volpp made helpful comments in conversations prior to the drafting of this essay. I also appreciate the invaluable research assistance of the many Northeastern students who have worked with me on race and migration issues, including Christopher Lane, Dimple Abichandani, Anand Parikh, Adriana Ysern, Susan Shah, Portia Cupid, Carmelyn Malalis, Josephine Escalante, Lucria Ortiz, Michael Sullivan, and Anna Tesmenitsky. Jan McNew, who works as a faculty assistant at Northeastern, deserves particular thanks for her help in bringing this project to completion.
You don't have to be teacher and nurse to be important.1
Women migrants often embody-literally-the absence, the breakdown, or the inequities of the international legal regime. War, global economic restructuring, human rights abuses, the persistence of gender oppression all over the world each play a role-alone, in combination, or alongside other factors-in propelling many women to depart their countries of nationality and seek new lives. . . .2
While immigrant women's labor is desired, their reproduction- whether biological or social-is not.3
Are the experiences of Black women as migrant workers4 in thePage 198Americas appropriate subjects of international human rights focus? Unfortunately, the answers to that question sometimes depend on the nature of the acts we recognize as human rights violations. Often, the primary focus of international tribunals and non-governmental organizations is only on the violation of "first generation" rights through direct state-sponsored physical violence.5 The relative invisibility of Black women in the Americas on the mainstream human rights agenda is at least partially due to the prioritization of civil and political rights and to the marginalization of economic, social, and cultural rights.6 Black women do, of course, experience traditional violations of civil and political rights7-they are arbitrarily detained, Page 199sexually assaulted, or otherwise tortured for their political opinions or for those of their partners.8 Feminist human rights scholars assert, however, that the traditional focus on political violence has failed to take full account of violence against women of color and white women, even in the "public" sphere.9 The failure to prioritize social welfare and cultural rights also undermines the interests of women to the extent that their experiences are socially constructed in the realm of the "private" sphere of home, family, and the (non-political) community.10
The answers to the question I have posed also depend on the lenses of identity through which Black women see themselves and through which those who make, interpret, and enforce the law see them.11 Even if we attempt to restrict our focus to gender, it soon becomes evident that gender itself is richly complicated and textured by other aspects of identity. As Page 200Sherene Razack has cautioned, "[W]e cannot begin to evaluate how laws work for women or don't work, without understanding that gender comes into existence through race, class, sexuality, and physical or mental capacity."12 Increasingly, contemporary forms of globalization mean that gender is further informed and complicated by the transnational identities of the women, men, and children who cross national borders in search of work.
Similarly, racial and ethnic identities are complicated by gender and by the flow of human beings within and across borders. The migration of groups racially, ethnically, culturally, or linguistically identified as "other" has led to the resurgence of racial violence in sites as culturally and geographically diverse as Western Europe, Eastern Europe, Central Africa, Southern Africa, and North America.13 In recognition of these trends, the United Nations ("U.N.") World Conference Against Racism addressed, among other things, the implications of the intersection of racism and sexism with migration status. 14
As part of a larger project on Black transnational migration, I have explored the implications of human rights discourse for one group of Black women in the Americas-Afro-Caribbean women who migrate to North America. 15 Some of those migrant women take jobs as household workers Page 201 and other caregivers ("domestics," home health aides, and nannies).16Excavations of their experiences can contribute to the larger feminist and Critical Race Feminist project of reconceptualizing the norms of human rights theory and practice. Such a reconceptualization is part of the continuing challenge of making human rights law a useful, transformative tool in resisting subordination.17 This brief essay reflects on the human rights implications of the use, and misuse, of identity stories about the experiences of Black women migrants.
Individuals and groups construct identities both to resist and to enhance globalization. In order to resist the strong influence of global markets and cultural pressures,18 communities recreate, or create, racial, cultural,Page 202religious, and national ties.19 Individual members of such groups may see themselves as agents of such communitarian aspirations, seeking cultural or racial bonds as a bulwark against the crushing intrusions of globalization.20On the other hand, they might also encounter and resist powerful elites who seek to use the authority of culture to crush non-conformity.21
In addition to such community-based or personal forms of identity, I argue here that some externally imposed gender, race, and cultural stereotypes operate simultaneously to serve the free-market agendas of global capital. These stereotypical roles are forms of "identity" that mediate whether, and how, individuals and groups who occupy certain class positions will gain access to legal structures. For example, gender, race, and ethnic stereotypes associated with "illegal alien" status assist in regulating the flow of low-wage migrant labor. Further, gendered and racialized images help to maintain many people of color in the United States in a precarious "foreigner" status, regardless of their documentation or residency status.22
In host countries, this manipulation of identity categories may take the form of discriminatory status and preference categories under immigration and asylum laws.23 Native-born and immigrant identity-based groups are structured and re-structured to occupy different spaces in racialized labor
Page 203and social hierarchies.24 At different historical moments, various ethnic, racial, or gender groups are encouraged to enter or discouraged from entering host countries. The resulting conflicts and tensions can be further manipulated to undermine political organizing and solidarity among these groups.25
Sending countries may be economically or politically dependent on the commodification of identity as well. Remittances from migrant workers are likely to be one of the most important sources of private transfers to the national economy. Gender stereotyping may figure into the perceived value of the potential migrant on the international market as in the trafficking of women for sex work and household work. Sending countries also may see migration as a means of reducing domestic unemployment or political unrest.26 The resulting formal and informal arrangements between hostPage 204countries and sending countries have enormous human rights implications for the migrant workers involved and the communities they enter and leave behind.27
In this essay, I explore the human rights implications of the stories surrounding one female migrant household worker. I explore the public narratives about her because they seem to epitomize how perceptions about identity can shape legal responses and how legal frameworks can shape our perceptions of identity. The identities associated with the migrant household worker described below seemed, at first, to constitute a uniquely complex illustration of the intersection of race, gender, ethnicity, class, immigration status, nationality, and disability. Yet, one lesson to be drawn from these stories is that all of our identities can be equally complex.
The economic, social, and cultural violence and atrocities experienced by many people from the "Third World"28 have largely been renderedPage 206invisible or irrelevant to mainstream human rights analysis.29 This failure to address economic, social, and cultural rights and the right to development has the effect of undermining the accountability of the North30 for violations of human rights.31 As noted by the U.N. High Commissioner for Human Rights, "[T]he shocking reality is . . . that States and the international community as a whole continue to tolerate all too often breaches of economic, social and cultural rights which, if they occurred in relation to civil and political rights, would provoke expressions of horror and outrage and would lead to concerned calls for immediate remedial action."32 As a...