Legal Capacity from a Gender
Perspective
Tina Minkowitz
Overview
• Uniform standard and meaning of legal
capacity
• Feminist values and inspiration
– Autonomy and relationships
– Making violations visible
• Women and girls with disabilities –
intersecting discrimination
CRPD and CEDAW
• CEDAW Art 15
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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 liability
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 living
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 law
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 circumstances
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
free
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 racial oppression
• Support needs suppressed or channeled into
relationships of dependency and control
• Peer support draws on feminist consciousnessraising, “hear each other into speech”
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
maturity
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 needs
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
choices
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)
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 incapacitybased control measures
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 selfdetermination
• Self as abstraction; relationships as vulnerability
and strength
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.
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
Contact and Resources
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tminkowitz@earthlink.net
http://ssrn.com/author=1348856
www.chrusp.org
www.wnusp.net