Working Within Biased Legal Systems

  • Gender-bias is inherent in public international law. The public is conceptualized as a masculine domain, while feminized, domestic space often remains outside the remit of international law according to the principle of non-interference in a country’s internal affairs. Many states exempt, through reservations and declarations, gender-justice aspects of domestic legislation from international regulation. National laws in many systems do not sufficiently regulate behavior in the home: domestic and inter-familial violence, including rape in marriage, remain under inadequate legal sanctions in countries across all continents, with the ‘private’ sphere assumed to be beyond the reach of the law. The language used in legal instruments and systems that you may be obliged to adopt in official documents may be outdated or discriminatory. Many instruments refer to women and children as in need of special protection, simultaneously sidelining men’s needs and fixing females in a place of assumed vulnerability. Age-bias is equally present, particularly in laws regarding child soldiers, who are often presumed passive victims rather than active agents capable of undergoing processes of justice and reconciliation.
  • You may intentionally select cases to challenge gender-insensitive laws and jurisprudence, particularly in fields such as access to justice for women, gender based violence (GBV), or citizenship inheritance claims. Much of the global body of refugee jurisprudence is based on men’s experiences, given women’s relative lack of mobility and consequent under-representation in cases: women often experience persecution in different ways from men, so assumptions based on the existing body of refugee jurisprudence should be questioned.
  • You may have difficulties litigating gender issues – even in relatively ‘mainstream’ cases. For example, understandings of men as possible survivors of GBV, or of coercion rather than consent or resistance in rape cases, may attract even greater difficulties when litigating in some national courts. Spreading gender-sensitivity through litigation alone is unlikely. Such processes are more effective in ending the invisibility of gender-bias if run hand in hand with educational campaigns in the media or among influential persons, including actors in customary legal systems.
  • Trafficking may be a recognized crime in the legal system you are working in. However, it is often recognized solely in relation to women in the sex industry. It may be challenging to promote an understanding of trafficking outside of this including men in the sex trade or women or men in forced labor like domestic work or agricultural work.
  • Your services may be gender-sensitive, but court systems may not offer, for example, woman judges to hear GBV and rape cases. Extra support may be required both psychologically and emotionally in such instances.
  • Certain legal systems may not recognize LGBTI identities despite international equality laws. Following through with such processes may be demoralizing for clients and may attract repercussions. It is important to consider the level of publicity a case will receive, and the risks present for your client, including psychological risks.