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Legal Capacity from a Gender Perspective Tina Minkowitz.

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Presentation on theme: "Legal Capacity from a Gender Perspective Tina Minkowitz."— Presentation transcript:

1 Legal Capacity from a Gender Perspective Tina Minkowitz

2 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

3 CRPD and CEDAW CEDAW Art 15 – 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

4 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

5 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

6 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

7 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

8 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 consciousness- raising, “hear each other into speech”

9 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

10 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

11 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

12 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)

13 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 incapacity- based control measures

14 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 self- determination Self as abstraction; relationships as vulnerability and strength

15 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.

16 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, – Support is messy, warm, creative Reshma Valliappan, – Need for self-care and time alone – Not throwing anyone away Tonier Cain, http://healingneen.com

17 Contact and Resources

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