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Topic: The Theoretical and Political Context of the Discourse On Women's Rights in relation to Human Rights

Freedom and Feminism in Our Time: The Evolving Basis of Theory & Practice

By Carolina S. Ruiz-Austria* \

Admittedly, the invitation extended by no less than the Women's Studies Association of the Philippines (WSAP), was one which I took rather seriously, unlike other "less serious" occasions where I am invited to speak, say a Congressional Committee or a Senate Committee, discussing legislation. Often enough, in such cases, I have often felt over prepared, barely able to provoke thought among the audience, our impassioned position papers and speeches notwithstanding.

Of course this is not the case here. I feel absolutely unprepared despite my preparation. This is not only my first time to address the Women's Studies Association of the Philippines, this is also perhaps the single largest gaggle of Filipino feminists I have ever faced, in scholarly discussion at that. What can be more frightening? I can think of very few things. Seriously though, it is an honor to be one of your plenary speakers.

The reflections I will share today on the topic are also partly taken from earlier work and essays, which I am glad to make available through my blog "Heresy." [ "]


Situating Feminist Theory and Practice

One basic challenge (among many others) that we face in today's discussion is the consideration up-front of the linkage between feminist theory and practice. Hopefully, conferences such as this one are premised on the core belief that reflective analysis and the realm of ideas can lead to more effective "feminist activism" or "advocacy."

We know about the common disdain for theorists and intellectuals who either have their head in the clouds or are accused of not being "in the thick" of it, and thus often put down and viewed as   "less credible" for their work.

Likewise, activists, we have often been told, and we have all too often learned, are those who "engage" the patriarchy on a full-time basis (whether institutional or otherwise) preferably in direct confrontation, unlike theorists stuck to their armchair or holed up in their ivory towers.

French feminist Collete Guillaumin spoke of the peculiar position of those who have the least power vis a vis the "products of intellect" and how in many ways, theory to the powerless is (and made to seem like) the "sacred verbiage" of those who dominate them.

Indeed, while there is some truth in associating theorizing with privilege and the relative luxury of time and space (obviously not monetary) that "academia" affords, I would rather emphasize as one of my all time favorite feminists pointed out to me that feminist theorizing is also actual work (and if I may point out as an active home maker in a co-dependent parenting unit, a lot of work indeed squeezed in between doing the dishes and everything else).

Elsewhere, I made the submission that it is precisely the purported dichotomies between thought/action; the learned (schooled) and unlearned (unschooled) that we need to transcend in the consideration of theory/practice. After all, rethinking hierarchies and binaries is not new to feminist thought and practice.

In so saying, the challenge for feminists goes both ways, on one level, how do academics and feminist theorists, go about sharing reflections beyond our usual academic circles, or for that matter, striking meaningful conversations outside otherwise scholarly comfort zones? That is, to include a conscious effort to communicate effectively READ: sans feminist scholarly gobbledygook.

On another level, it also means for many advocates claiming to have neither the time (nor patience) in "theorizing," to begin acknowledging that theory in fact also drives and motivates their politics.

More importantly, does not dismissing theory altogether mean abdicating one's ownership over the means of producing theory? (That is, is it not akin in many respects to a self-performed lobotomy?) And yet for many feminists who are in a position to speak on other's behalf, rejecting theory and the capacity to theorize means no less than a disavowal of the capacity to produce social change.

Indeed the ensuing gap between what is considered "theoretical" on one hand and "political," (ergo practical and strategic) on the other hand is where I propose to approach the discourse of "women's rights," in relation to "human rights."

Feminist Engagements of Human Rights: Some Hard Earned Lessons

Whether in the classes I teach or in opportunities to speak about women's rights, I find it important to emphasize how Feminism's critique of power relations not only along sex/gender categories but also throughout intersecting categories of race, class and ethnicity has always held the potential of moving human rights discourse from the delimited realm of the law or even legal philosophy, to the tangible everyday realm of human relations.

Several decades of work in "women's rights" was central to reworking the discourse of traditional rights into the familiar notion of human rights we have today, which is a far cry from the basic legal or even exclusively political notion of "rights" we had as recent as the 80s.

Among others, initial feminist engagement of rights addressed the basic exclusion of women from "rights claiming," and to do so, women's rights positions had to challenge the ideology of "separate spheres" for women and men, which are also deeply rooted in the public/private dichotomy. Feminists like Margaret Thornton pointed out that the notion of a fixed public and private divide was not only false, but also in fact commonly movable (by the State) along gendered lines.

A key feature of this feminist reworking of rights has been the constant challenge to the "State," and literally even the realm of the political. (I will discuss this further later.)

Basic concepts of "State Responsibility" in human rights were expanded (through the engagement of women's rights and environmental rights activists) from mere liability for direct actions, to a concept of State liability for inaction and omission (a failure to do).

Not surprisingly, even as addressing "exclusion" was the first order of feminist critiques of traditional human rights, the same analysis laid bare the built-in limitations of legal institutions and systems in achieving social change necessary to transcend inequality.

In our own neck of the woods in "women's rights advocacy," we know how legal advocacy, (i.e. legislative advocacy) was the primary strategy taken to address this exclusion.

Yet at the back of our minds, we knew that continuously harping on rights, human rights and even women's rights in their sense as "State mandates," duties or obligations, ergo legal rights, only meant to reinforce how and what these notions are in their delimited sense that is as, "positive law."

To be very specific, in the realm of education and training, how have women's rights advocates (or gender equality advocates) approached human rights education? In my own experience as both teacher and trainer of paralegals and law students, I have often found how knowledge of legal provisions (human rights conventions) come only secondary to an introduction to critical feminist perspectives about legal institutions and the law itself.

The agenda was simpler then than now of course, challenge exclusion of women, work for inclusion and participation. (In many respects this is still a relevant call). At this historic moment, we are facing some of the serious consequences of having become full-pledged "subjects" of law that is having been categorized as "women" before the law.

Law as Constitutive Discourse

In order to even begin mapping out agendas in whatever context we work from as feminists, there are a host of lessons in feminist legal theory and practice, which will aid us.

First and foremost for feminist activists, is to grapple with "law" as constitutive discourse that is to recognize that law does not describe situations or set ups but in fact constitutes them. Many feminists already have critical analyses of law and legal frameworks (as I always say: like any other people, harboring a distrust for lawyers is sure sign of a critical mind). But often they also hesitate when it comes to a deeper interrogation of legal discourse (beyond text and individual case narratives-although both are still important starting points).

In fact, I submit that law's character as "framing discourse" is in fact common knowledge among feminists as can be gleaned from the passionate debates around terminology in the case of trafficking and prostitution.

The irony however is instead of using this awareness about the characteristics of law to debate the role of law or even the state given the scheme of things or given contexts, feminists have ended up battling with other feminists in the war over politically correct terms as if words, signs and meanings could have universal significance (that is absolutely) at every level and in every culture.

I am referring of course to the "them and us" (on either side) of the divide in the sex work/sex slavery binary that has often left actual women in prostitution and young feminists baffled.

Likewise, the battle over legal meaning always means "fixing" the sign and foreclosing any or all other possibilities. This is the function of law after all since traditional institutions draw part of their power and legitimacy through the myth of objectivity via legal methodology that is grounded on pre-destined "scripts" of uniformity and set precedents.

Again as examples of these scripts in my own experience of litigation and NGO services for women, I have often encountered some practices, which I feel urgently need to be addressed. These "scripts" or set narratives do not merely exist on written jurisprudence, reflective of the mindsets of a traditional judiciary, they also exist within the women's movements.

One of them is the "overprotective" tendency among some service providers when it comes to handling individual women victims. Time and again we will encounter victims who lie about their own circumstances or even withhold information because they fear it will affect the service provider's opinion of her. While I am in no way advocating that we turn away clients with genuine problems on the mere basis of such behavior, it is frustrating to see how often the problem is not addressed when feminists ignore the behavior instead of being firm and confronting the women about it in order to move forward.

Some of these "scripts" also include the set-expectation on the part of feminist advocates for each and every client/victim to decide to file a case (plus finish it to the very end) especially in cases of sexual abuse or rape. Many times, even the client ends up afraid to disclose that she is in fact open to entering a settlement or in the case of sexual harassment cases, a mere apology, because she thinks the lawyer or advocate will be disappointed in her.

How about the presumption of "sexual abuse" when the woman is a minor but already sexually active at say 16 or 17 years old?

To be sure these are difficult issues to even begin addressing at a practical level but nonetheless I feel strongly we should open up to reconsidering our positions if only to assess how empowering (or disempowering) our interventions have been.

Sexual Rights in the Era of Multi-Centricity: Grappling with Law's Legitimizing Function

"A gain in women's equality in one space may matter little or become altogether meaningless in another space that itself undergoing a dynamic shift. This multi-centricity challenges the women's movement's ability to deploy our energies in different spaces simultaneously, as well as stretches our capacity for sustained inter-linkage so as to avoid eventual fragmentation..." Gigi Francisco, in "Sighting paradoxes for gender in the social movements" DAWN-Southeast Asia

The question of whether or not to engage law - that is whether it is ever possible to be "purist" in the feminist activist sense, seems to be one question feminist movements have long passed. Wherever and whichever way feminists position themselves vis a vis law and legal institutions, the fact is, legal institutions are being engaged at all fronts and continues to be so engaged, by a myriad of forces and movements (not all progressive, neither all united) and feminists are included.

Gains in feminist strategizing around institutions like the UN and its agencies, demonstrated how feminists were also coming to terms with both the limits and the "uses" of law and policy in advancing feminist agendas outside the existing parameters (or known universe) of legal or legitimate, recognized   (feminist) claims.

Sonia Correa (2005) in a paper entitled From Reproductive Health to Sexual Rights: Achievements and Future Challenges, noted the legitimizing function that UN conferences and corresponding policy initiatives served in introducing the concept of "sexual rights," in human rights discourse:

"The language of reproductive health, gender and sexuality - language that until recently was used almost exclusively in the academic milieu and within social movements - has undergone a process of legitimization. One illustration of this is the fact that this language has been included in the programs of action of the International Conference on Population and Development (Cairo 1994), the Fourth World Conference on Women (Beijing 1995) and the World Summit for Social Development (Copenhagen 1995). This process has been uneven, however. While the words themselves have become common in international texts and analyses, the extent of assimilation of their meanings by national political bodies and in people's minds varies widely across countries.

Thus, it continues to be necessary for feminists to disseminate information about these concepts as broadly as possible among policymakers, legislators, and society itself. Clarification of the meanings of these terms continues to be required, since the process of legitimization may lead to simplifications and distortions in the course of policy development and application."

At the moment, "sexual rights" is not yet a legitimate term so to speak but its use has become widespread following feminist engagements of the negotiated ICPD. Worth pointing out is Correa's cautionary note about the process of "legitimization," which echoes contemporary feminist legal theory about the built-in (sexist) biases of law and legal institutions, not to mention its primary normative function.

Laurie Naranch, feminist legal theorist put it quite succinctly: "State power simultaneously empowers and disempowers women."

Otherwise put, "legitimization" offers new discursive spaces otherwise not available to feminist analysis and positions there is always the built-in problem of potential distortion. What have been some of these setbacks?

Sex/Gender in the "mainstream"

The standard module or discussion on sex/gender usually begins with an elaborate discussion and distinction between the social construct and the supposed "biological" realm.

No doubt the main objective has always been to debunk the biological (natural) basis of women's subordination, which while by itself is a worthy objective, falls short as long-term strategy.

Heteronormativity notwithstanding, the dichotomy has been on one hand convenient because it provides a neat explanation about men's power over women. After all, in many societies, including ours, IT IS still mostly MEN (in the socio-biological definition of it) who continue to have POWER OVER "women." (Similarly, boys still have some status and privilege over girls).

Inasmuch as feminism itself that is women's movements in garnering significant cultural and political influence did so (and still does so) in huge measure due to basic identification with and opposition to "women's oppression," why then bother arguing over the premises of womanhood/manhood? That is, why even bother treading on or challenging the sacrosanct socio-biological?

Indeed, the sex/gender (based on the biological/cultural) distinction misleads. We know that the realm of the biological, as well as other branches of knowledge (the sciences included) is also gendered. In so saying, it isn't only SEX, which is the cultural construct. What is SEX and not sex is also hardly something that has proven uniform or universal.

Furthermore, the sex/gender dichotomy reinforces and leaves unquestioned, the naturalness of the binary that is, exclusively the male/female standard. In turn, it has also provided in linear fashion, a basis for so-called "feminine" and "masculine" gender traits (despite the fact they never prove universal) and we are left stuck still grappling with sex differences, on the basis of prescribed maleness/femaleness.

Noteworthy however is the fact that as far back as the beginnings of feminist theory, feminists have been coming to grips with the prior problem of essentialism. Simone de Beauvoir asked then as Butler, Harraway, Jaggar, among others, articulated the challenge for our time, sex is a political category and a cultural construct as well.

The results of course varied. From the definition of "gender equality" goals as the achievement of "gender neutrality," (i.e. ignoring sex) right down to a reduction/oversimplification of the "gender equality" agenda, to a head count of "women" recipients. Not surprisingly, in focused group discussions among development and NGO staff, the notion of "gender equality" often simply appeared as the need for men to be more understanding of and accommodating of women because of their biological differences.

Yet as aptly pointed out by a group of feminists in an ISIS led discussion a few months ago, the "gender mainstreaming" bandwagon afforded many feminists and social movements themselves, the space (and legitimacy) to further the engagement of institutions as well as popular notions about sex/gender. After all in a context of exclusion, focus on participation and inclusion ("mainstreaming")made initial sense. The challenge now is not really to cast blame but to move forward in our critiques, and reflect on how the sex/gender dichotomy forecloses a myriad of strategies for feminists.

Post-Women's Rights: Overcoming the State

Most of us have probably heard about the usual critiques on the universalistic assumptions behind "rights, or human rights" claiming and its tendency to gloss over geopolitical inequality, not excluding the varied contexts of women's movements across the globe.

Taking off from this critique of "rights assertion and claims making" I turn to look at the actual levels and forms of engagement in my local backyard of "RH" and "SRR" advocacy.

The SRR and Population Tension

The ICPD is a compromise document. This fact is well known to feminist advocates and the progressive social movements. While on one hand, the ICPD brought the challenges to development discourse, further than ever within the mainstream and the UN in particular, recent developments around "reproductive health advocacy" call for an urgent re-assessment. Reproductive health, which for the local social movement, is really the broadest frame to unite erstwhile issue based advocates whether in HIV prevention, family planning or choice, is also a term which is used interchangeably with "population management" and even "population control," by mass media.

Indeed, even as "population and development" was precisely formulated in attempt to re-frame analysis and distance it from the traditional population control frameworks represented by draconian policy and associated with state agendas with a dark history of eugenics backed sterilization programs, not paying enough attention to these lessons can cost us big time backlash. Let me cite a specific example.

Contraceptive Technology, Corporate Interests and Women's Decision-Making: Focus on the IUD and ECP in the Philippines

In 2001, Emergency Contraception was banned and Womenlead filed a case on behalf of RHAN to re-register the product. The long and short of the story is that while the petition was supported by a majority of the experts convened by DOH, the Secretary refuses to re-register the product until there are no actual corporate applicants for the product. Meanwhile, the IUD was petitioned for a ban, on the same basis by the same fundamentalist group in late 2005. Recently, in a memorandum issued by the DOH in response to the numerous inquiries and a Petition letter by RHAN, the DOH came out in support of the retention of the IUD within the range of its available services of contraception.

On one hand, it is a clear victory for women who choose the IUD as their primary method of contraception. While like any other RH advocate, I vouch for the safety and efficacy of the IUD, I also note the following observations.

The DOH continues to receive IUD donations from the USAID to date. In fact, it is the only product that has not been totally phased out. Studies in the developed countries show a steady decline in preference for the IUD. In fact, despite the common claim in both the websites of the pharmaceutical firms and the World Health organization that next to sterilization, the IUD is the most popular means of birth control, can be a misleading claim. It turns out that 70% of those women on the IUD are in China. (We all know China's track record on draconian Family Planning policy)

Likewise, the most popular means to women in developed countries (that is most of the EU and the US), the pill combined with condom use is the most common method of choice.

The Political Economy of Choice

Notable is how compared to the IUD and sterilization, the pills and even the condom are methods high on agency, literally decision-making. Condom use in the Philippines is as we know, among the lowest primarily because of the belief that it will reduce male sexual pleasure!

A small scale study by a clinic in Nigeria I came across also noted that in the context of high demand for IUDs in their clinic, the women disclosed that the IUD was preferred because it was the method, which they could access without the husband's knowledge. These were the women who were restricted by their partners in their choice to space or control pregnancy.

Likewise, US studies which boast that the level of access and preference for sterilization was almost the same for both white women and women of color (the difference was supposedly de minimis) is also misleading. It turns out that the actual number of women who had ligations is twice as high for black women. 10% of the white women who answered sterilization was their FP method actually meant it was their partners (husbands) who had vasectomy!

If we were to look at the local setting, the IUD is the method mostly used by women in the rural areas. Condoms and vasectomy, are hardly ever the FP method of choice. On one hand, it is better than nothing but on another significant level, it is a disservice to women who actually have no other choice in the matter. Likewise, the IUD is not suitable birth control for all women, especially when at risk for STDs.

What does this mean for feminist advocates in SRR and even RH? This is what I submit, we need to look into and strategize further as we go about our advocacy. Indeed, both the population control forces and corporate interests searching for new markets for their surplus products can in fact exploit the "IUD victory." Notable is that in the "Contraceptive Self Reliance" agenda of the USAID, it is the IUD which has not been pulled out precisely because demand has not reached a level which will make it profitable for pharmaceutical firms to market their products. As feminists, we must not and cannot end up unwitting marketing arms of mere corporate interest.

In contemplating where advocates stand in the midst of liberalizing states and expanding markets, we come back to the question of the State.

Indeed, various notions of classical "state welfare" and "state services" have permeated claims-making messages and advocacy positions of "reproductive health advocates" as well as parallel social movements, which include the local women's movements in the Philippines for the last twenty or so years.

Yet beyond this basic premise, of an ideal "state" (whether welfare or a sub-species of it), did we ever match (or develop) advocacy strategies   which specifically targeted the decline (both a notion of and the presence of) such a state?

Did we actually think it (the ideal state) would take care of itself as we went about issue-based and largely law reform (that is the enactment of law) based initiatives? Sincere as we were in refusing to engage the state inspired by a particular reading of "Marxism" echoing a derision  of "the state" way back when, how then did we ever rationalize our demands vis a vis states and institutions when we did our usual mantras on "Human Rights Violations or even Women's Human Rights?"

This for me is one aspect of prime importance to feminists everywhere. Even as recognizable forms of the same old militarist and police states re-emerge, this is also happening in a new context: symbols and their meanings are up for grabs, we have to constantly ensure we are being very clear about what we mean and where we are coming from. (This is why an EDSA redux is not possible). Again in another essay noting the state university's reaction to Proclamation 1017 I wrote :

"In as much as blatant state abuses of power look and seem the same, there was more than one thing amiss and strangely awkward about a university trying to find its voice by heedlessly mimicking (and reliving) its "glory days," through the use, re-use and over-use of not just clichéd expressions, but actually not being able to put forward anything new ideas amid the newly relit hotbed of meanings.

I can understand that trite as they may sound, our tried and tested vocabulary for protest actions somehow lend both nostalgia and a ready made "militant" air about our speeches and position papers. But as convenient as shortcuts many of our usual terms may be, there is every danger that we may not be moving forward (not even an inch) or that many of us are simply not being true to our own constantly evolving theoretical bases."

Powerful as ever as the state is on one level of sheer military/police force/s vis a vis lowly civilians, the state we confront today is in fact puny compared with the state of old! Speaking particularly of the debt-strapped Philippine state, the state we have now has so much less to offer, much less to do with the daily lives of Filipinos by way of services and sheer presence! (Ironically, it is only MEDIA (emerging the most powerful) - which makes it out to be of such continuing central importance!)

All the while the irony is that even as the current state sheds itself of its traditional mandates (public services), it is continuously asserting itself by way of military/police presence and penal sanctions! From user fees to health programs premised around "private sector spending" (a.k.a. lessening state subsidy to expand the market), the dwindling state protection and coverage of overseas workers to active marketing and deployment of Filipino workers, we need to take a long hard look at the state we are talking about and engaging.

It is my next submission that despite whatever sophisticated analyses of state/power/sex/gender/class and race systems, decades of institutional engagement know-how and expertise, we have yet to begin working out on a practical level, what each of us whether in UN engagement, media, global feminist work, local, community-based and grass-roots work, and as feminists can do to face these challenges head on.

Again, I have to acknowledge that such a feminist project, will probably not take-on a specifically centralized ala BPFA form type of coming together. (I was too young to be there by the way) but rather as Gigi said, it is clearly "multi-centric," even as the need to keep linking exists.

In ending, I would like to quote from Warren Magnusson, a teacher of urban politics and political theory. To me, what he says is a fresh take at Carol Hanisch's 1970 essay (The Personal is Political and the political is personal):

"The idea that the political can be otherwise than state-centric is not new. In fact, it has been a constant theme in recent years, as various groups have focused on issues that others have tried to set outside politics proper. The disputed exclusions (women's issues and environmental issues, for example) were often justified on the grounds that the state lacked the authority or capacity to deal with the matters raised, matters that were properly within the ambit of society or culture or private business. So, to say that these exclusions had to be overcome (as feminists and environmentalists have done) was to say that politics had to transcend the state. This move was and is crucial because it enabled people to see that the line between the political and the non-political is not the same as the line between the state and society. One can be politically active in the state, in society, or in an indeterminate zone that seems as much one as the other. Is that not the meaning of what we call "social" movements, ones that defy the existing political limits, and establish spaces for political action that connect ordinary people with the wider world in innovative ways? "

While I propose neither schematics nor a blueprint for the next "feminist project," I am nonetheless thrilled, at the possibility that from engaging the State to reworking politics and the State itself, feminist movements shall continue to emerge as s critical driving force of social change.


\ * Senior Lecturer, University of the Philippines, College of Law; Board President, Women's Legal Education, Advocacy & Defense Foundation, Inc. (WOMENLEAD). [This work is covered by a Creative Commons License and may be cited with proper attribution] 2006.

Guillaumin, Collete, Racism, Sexism,Power and Ideology, Routledge, 1995.

This portion is lifted from "Sex and the State: A Theoretical Framework for Strategic LitigationIn Sexual and Reproductive Rights in the Philippines," draft in progress by C.S.Ruiz-Austria for Womenlead Foundation, Inc., August 2006.

Theories for Our Time: Feminist reflections from "freedom zone" (UP Diliman)

(Written between February 24-March 3, 2006) posted on

Compare William K. Carroll, ed., Organizing Dissent: Contemporary Social Movements in Theory and Practice, 2nd ed., Toronto: Garamond Press, 1997.

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