Legal Capacity & Gender - Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women and Gender Minorities
ABOUT AUTHOR
WHY THE BOOK IS IMPORTANT FROM A HUMAN RIGHTS PERSPECTIVE
Gender equality remains an illusory goal. Significant advances have been made in the last several decades. However, progress has slowed. There is continued resistance to women in leadership roles, as well as ongoing prejudicial notions about women’s abilities as decision-makers. In addition, many gender minorities continue to lack legal recognition altogether – such as transgender, intersex, and other individuals who identify outside the gender binary of male/female. Individuals who experience multiple forms of marginalisation are even more profoundly affected by these inequalities – for example, women with disabilities. It seems as if our current frameworks for combating gender inequality may be insufficient.
I undertook extensive research on the human right to legal capacity for my 2017 book, Restoring Voice to People (Cambridge University Press). Using international law, I argued for a definition of the right that includes two core elements – legal personhood and legal agency. At the time, I primarily applied the right to the situation of people with disabilities, who are experiencing extensive denials of the right to legal capacity via guardianship, mental health laws, and other legal and non-legal methods of denying decision-making rights. However, while undertaking that research and analysis, I began to see parallels with gender – legal personhood and agency have been denied based on gender throughout history. Coverture laws vested married women’s legal personhood and agency in their husbands. Disabled women have been treated as objects and been subjected to forced sterilisation and institutionalisation. People who identify as non-binary or have non-binary gender experiences have been criminalised and forced to undergo painful and damaging medical treatment. I began to see that the denial of legal capacity throughout history has significantly contributed to gender inequality. In my new book, Legal Capacity and Gender (Springer 2021), I present the right to legal capacity as a new framework for understanding and combating gender inequality.
The book explores the role of gender in the recognition of an individual’s legal capacity. It discusses the meaning of the right to legal capacity and then analyses historical and modern denials of personhood and agency experienced by women, disabled women, and gender minorities – for example, prohibitions from voting, limitations on contracting, loss of personhood upon marriage, and gender binary requirements leading to an inability to exercise legal capacity, among others.
Using critical feminist, disability, and queer theory, the book also offers insights into the construction of legal personhood and its role as a predictor of power and privilege. The book identifies patterns of oppression through
legal capacity denial in various jurisdictions and discusses situations in which modern law continues to enforce these denials.
In addition, the book presents solutions: it identifies practices to learn from in various jurisdictions around the world – including both civil law and common law jurisdictions. It also uses case studies to illustrate the ways in which existing laws, policies and practices could be reformed. As such, the book offers both a novel contribution to the field of legal capacity law and a tool for creating change and helping to realise the right to legal capacity for all. I hope that it can provide a new way of thinking about gender inequality and a new tool for addressing gender inequality – the human right to legal capacity
I undertook extensive research on the human right to legal capacity for my 2017 book, Restoring Voice to People (Cambridge University Press). Using international law, I argued for a definition of the right that includes two core elements – legal personhood and legal agency. At the time, I primarily applied the right to the situation of people with disabilities, who are experiencing extensive denials of the right to legal capacity via guardianship, mental health laws, and other legal and non-legal methods of denying decision-making rights. However, while undertaking that research and analysis, I began to see parallels with gender – legal personhood and agency have been denied based on gender throughout history. Coverture laws vested married women’s legal personhood and agency in their husbands. Disabled women have been treated as objects and been subjected to forced sterilisation and institutionalisation. People who identify as non-binary or have non-binary gender experiences have been criminalised and forced to undergo painful and damaging medical treatment. I began to see that the denial of legal capacity throughout history has significantly contributed to gender inequality. In my new book, Legal Capacity and Gender (Springer 2021), I present the right to legal capacity as a new framework for understanding and combating gender inequality.
The book explores the role of gender in the recognition of an individual’s legal capacity. It discusses the meaning of the right to legal capacity and then analyses historical and modern denials of personhood and agency experienced by women, disabled women, and gender minorities – for example, prohibitions from voting, limitations on contracting, loss of personhood upon marriage, and gender binary requirements leading to an inability to exercise legal capacity, among others.
Using critical feminist, disability, and queer theory, the book also offers insights into the construction of legal personhood and its role as a predictor of power and privilege. The book identifies patterns of oppression through
legal capacity denial in various jurisdictions and discusses situations in which modern law continues to enforce these denials.
In addition, the book presents solutions: it identifies practices to learn from in various jurisdictions around the world – including both civil law and common law jurisdictions. It also uses case studies to illustrate the ways in which existing laws, policies and practices could be reformed. As such, the book offers both a novel contribution to the field of legal capacity law and a tool for creating change and helping to realise the right to legal capacity for all. I hope that it can provide a new way of thinking about gender inequality and a new tool for addressing gender inequality – the human right to legal capacity
