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CHAPTER 1

Transnational Legal Feminist Approach to Cross-Border Practices

The transplantation of people from one country to another has given rise to hotly contested questions about women’s human rights. When Muslim women migrate to France, some may wear a veil to cover their bodies and faces. Many in France view the veil as a symbol of inequality. France presently bans the full-face veil. Yet, some veil-wearers in France argue that the veil is emancipatory. The debate raises a number of questions: Just because the practice of veiling in another country reinforces women’s inequality, should we assume that it has the same impact in France? Some immigrants from Asia in the United States may abort fetuses because they do not want a child of that sex. While sex-selective abortion is thought to violate human rights in India, should we assume that it also contravenes women’s equality in the United States? Should sex-selective abortion, which is banned in some countries, also be prohibited in the United States? How relevant is the context where the practice arises in making that decision? Using sex-selective abortion as a case study, I propose a methodology to evaluate similar practices that emerge across borders.

Practices such as veiling and sex-selective abortion are often examined by scholars and advocates through the lens of feminist legal theory and international human rights law. In the United States, feminist legal theories worked dynamically to push for legal and policy changes to further women’s equality. However, when American feminist legal theory developed it did not have to contend with a world with such massive migration of people who also brought practices with them from one place to another. Those theories were largely aimed at assessing and addressing women’s inequality in one country context.

The dominant paradigm among international human rights scholars and practitioners is that rights are “universal.” In other words, if a practice violates a right (such as the freedom from gender discrimination) in one country, that same practice undertaken in another country is also deemed to violate human rights. Cultural relativism is often contrasted with universalism in human rights discourse. A strong cultural relativist would argue that human rights are relative and as such, traditional or religious practices, even if they deprive women of autonomy and equality, should not be prohibited. While I disagree with cultural relativism, I think that the universalist perspective also has limitations in evaluating bans on practices that are brought from one country to another by immigrants. I call these practices “cross-border practices.” Scholars should do more work to explore the possibility of a legitimate theoretical space between cultural relativism and universality.

Largely as a result of the dominant universalist paradigm, scholars, policymakers, judges, and other important actors may not adequately contextualize cross-border practices. Some who believe that an act has the same harms across borders may assume that motives for and consequences of a practice in one country context will be the same or similar in another country context. Because of these assumptions, they might also fail to give significant recognition to how the social context where the practice emerges informs whether or not a practice is discriminatory. In this chapter, I demonstrate that policymakers who are considering bans on sex-selective abortion rely heavily on their understanding of the practice as it occurs in the immigrant’s country of origin. I refer to this as “decontextualization.” I also observe how decontextualization occurs in the debates on the veil ban in France, which I describe in Chapter 7.

I use sex-selective abortion bans in the United States to make the case for why we need a new legal approach to examining whether or not cross-border practices contravene women’s equality. I propose a methodology that prioritizes women’s rights, is context-sensitive, and uses comparative methodologies to evaluate cross-border practices. Few Americans are aware that a wave of legislation to restrict sex-selective abortion began sweeping through state legislatures in 2009. More than half of state legislatures since that time have voted on such bills. Seven states recently adopted them. Two states had enacted them decades ago. As recently as April 2016, the judiciary committee of the U.S. House of Representatives held a hearing on a federal bill to prohibit sex-selective and race-selective abortion.¹ A similar bill was introduced again in January 2017 in the U.S. House of Representatives.

These bills prohibit abortions if they are being undertaken because the fetus is not of a sex that the parents desire. The bills are part of a strategy of anti-abortion groups in the United States to limit access to abortion. Anti-abortion advocates target issues that appeal to people who otherwise support legal abortion. They justify the bills by arguing that sex-selective abortion is widespread among Asian Americans and occurs at similar rates in the United States as other countries.

Sex-selective abortion bans are not the only anti-abortion statutes that have been justified in terms of women’s rights. The U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt² found restrictions on access to abortion that claimed to promote women’s health unconstitutional. The Texas statutes in question in that case required abortion clinics to satisfy the same standards as surgical care centers and required medical professionals working at those clinics to meet other unobtainable requirements.³ The Court found that those restrictions did not actually improve women’s health and instead severely limited access to abortion services in Texas.⁴ It is easier for pro-choice Americans as well as the majority of the U.S. Supreme Court justices to see the disingenuousness of arguments in favor of the Texas statutes. It is harder to immediately recognize the disingenuousness of arguments in favor of sex-selective abortion bans.

In the section “Decontextualization in Debates on Sex-Selective Abortion Bans in the United States,” I describe how the debates on sex-selective abortion bans in the United States referred to the magnitude and impact of sex selection in other countries in making conclusions about its scope, motives, and consequences in the United States and explain why that is problematic. The section “Culture vs. Context in Understanding Immigrant Behavior” demonstrates why decontextualization occurs in popular discourse as well as some feminist writings. When evaluating immigrant behavior, there is a tendency to overestimate the role of culture in shaping behavior and to underestimate the role of context. In the section “Context in Feminist Legal Theories and International Human Rights Law,” I discuss the role context plays in traditional American feminist legal theories as well as in more recent work that focuses on the global. The section “Transnational Feminist Legal Approach to Cross-Border Practices” proposes a methodology, the transnational feminist legal approach, to evaluate legal regulations on immigrant women’s behavior. I first define “sex selection” and the methods that can be used to achieve it.

Methods of Sex Selection

I use “sex selection” to mean the process whereby people intervene with nature in an attempt to give birth to a child of their desired sex. Some authors refer to the selection of the sex of a child as gender selection. I prefer to use “sex selection” in recognition of the fact that “gender” is both a biological as well as a sociological construct. A person’s sex does not necessarily determine his or her gender. When one or more parents attempt to preselect the sex of their child using medical technology, they are unable to control the future gender of the child.

Some people who engage in sex selection do so to achieve gender variety in their families—in other words, they want at least one boy and at least one girl. This is known as “family balancing.” There are several methods of sex selection, which I categorize as pre-implantation or post-implantation methods.

There are two pre-implantation methods of sex selection: (1) sperm sorting combined with artificial insemination (also known as intrauterine insemination, or IUI), and (2) in vitro fertilization (IVF) combined with pre-implantation genetic diagnosis (PGD). Sperm sorting involves sorting sperm into those that carry the X-chromosome and those that carry the Y-chromosome. If a girl is desired, then the woman will be artificially inseminated only with sperm bearing the X-chromosome. If a boy is desired, then the woman is inseminated with Y-chromosome-bearing sperm.⁵

Dr. Ronald Ericsson developed a method for sperm sorting in the 1970s. By the 1980s, it was available in the United States.⁶ MicroSort recently developed another method of sperm sorting. According to the company, this technology is proven to be 93% effective for selecting girls and 82% effective for selecting boys.⁷ The MicroSort process works by exposing spermatozoa to a fluorescent dye. The sperm are passed through a flow cytometer, which is able to sort the sperm on the basis of cell fluorescence. Sperm with an X-chromosome (indicating a girl) glow more brightly.⁸

The Food and Drug Administration (FDA) banned MicroSort from continuing to conduct clinical trials for family balancing purposes, but allowed it to continue trials for sex-linked diseases. With this seemingly insignificant regulation, the FDA has weighed in on the ethics of sex selection in the United States without any public process.⁹ In places outside the United States, MicroSort advertises its services for people who already have at least one child and want to have another child of an “underrepresented gender in the family.”¹⁰ Thus, MicroSort will deny its services to a family that wants only girls or only boys. Although MicroSort is not legally available in the United States for family balancing purposes, other methods of sperm sorting are available and are being advertised. One clinic in the United States offers sperm sorting for $1,300 to $2,500.¹¹

Once sperm are sorted according to X-chromosome and Y-chromosome, the selected sperm are inserted into the uterine cavity, but artificial insemination does not result in a pregnancy every time. Indeed, its success rate is only approximately 20% per cycle.¹² The procedure may need to be repeated several times to achieve pregnancy. In addition, no sperm sorting procedure is 100% effective in properly sorting the sperm according to X- and Y-bearing chromosomes. Thus, even when pregnancy is achieved through artificial insemination, it is possible that the sperm-sorting process failed and the child will be of a sex other than the one that was desired.

There is, however, another procedure, widely available in the United States that is more effective for sex selection: in vitro fertilization (IVF)¹³ combined with pre-implantation genetic diagnosis (PGD).¹⁴ PGD is used to test the genes of an embryo to identify genetic diseases, but it can also be used for sex selection purposes.¹⁵ In the IVF procedure, medical professionals remove eggs from a woman and fertilize them outside of the body.¹⁶ One or two cells are removed from the embryo three days after fertilization, and the sex of the embryo is determined through chromosomal analysis of the removed cells using PGD.¹⁷ Only the embryos of the desired sex are implanted in the uterus. Although more than one embryo is typically inserted into the woman’s body, IVF does not always result in pregnancy. Indeed, its success rate for achieving pregnancy is less than 50%.¹⁸ Thus, a woman may have to repeat the procedure. If a pregnancy is achieved, however, then it is certain that the embryos placed in the uterus will be of the desired sex.

IVF costs approximately $15,000 to $20,000 for each round in the United States. IVF is typically used mainly by infertile couples, but there is enormous profit potential for providers to market their services for sex selection. These procedures are legally available in the United States and, indeed, some fertility clinics actively promote them for sex selection purposes.¹⁹ Incidentally, none of the proposed or enacted bills attempts to prohibit the use of sperm sorting or PGD for sex selection purposes.

The post-implantation method of sex selection is abortion, which I refer to here as “sex-selective abortion.” There are several ways to identify the future sex of a fetus. The most commonly used test for sex determination is the ultrasound. In an ultrasound test, a medical professional uses a machine that emits and receives high-frequency sound waves to create an image, also known as a sonogram, of a woman’s uterus.²⁰ A medical professional can observe the anatomy of the fetus and detect its future sex at around eighteen weeks of gestation. About 90 percent of abortions occur in the United States well before the future sex of the fetus can be known using an ultrasound.²¹ Even at eighteen weeks of gestation, medical professionals cannot detect the sex with 100% accuracy, particularly if the fetus is not in an appropriate physical position to allow for such a determination.²²

Amniocentesis and chorionic villus sampling are other tests that can determine the sex of the fetus.²³ Amniocentesis involves withdrawing amniotic fluids and testing them for the sex of the fetus; this procedure can be conducted during or after the fifteenth week of gestation. Chorionic villus sampling involves the insertion of a needle into the pregnant woman’s uterus and the removal of a sample of the chorionic villi from the placenta for testing.²⁴ This test can be performed between the ninth and twelfth weeks of gestation. Both of these tests involve a risk of miscarriage. As a result, less than 2% of pregnant women in the United States undergo an amniocentesis or the chorionic sampling test.²⁵

Finally, blood tests, a rapidly evolving technology, are relatively inexpensive and easy to administer. A pregnant woman can simply prick her finger and send a sample of her blood to a lab for analysis. One study found that blood tests to determine the sex of the fetus are very reliable around seven weeks of gestation, with accuracy rates between 95% and 99%.²⁶ Having defined sex selection and the methods by which it can be accomplished, I now turn to a discussion about decontextualization in the discourse around the bans on sex-selective abortion in the United States.

Decontextualization in Debates on Sex-Selective Abortion Bans in the United States

In our increasingly global world more people are moving across borders and settling in new countries. Information is also increasingly global. An important news event in India reaches the United States almost instantaneously. Media in one country may often report on human rights abuses in another country. But the knowledge that is conveyed across borders is usually a snapshot of the nuanced reality.

People in migrant-receiving countries sometimes use the limited knowledge they have about certain groups of people in foreign countries and see migrants from that country through the lens of that knowledge. Advocates and policymakers may inadvertently assume that many migrants will undertake practices for the same reasons as people who are from the country of origin of the migrant. I identify three ways in which decontextualizaton occurs—behavior, motives, and harms. To assume that people who live in one country behave in a certain way and for the same reasons based on knowledge of people in another country is like stereotyping across borders. Those who decontextualize incorrectly assume that women who trace their origins to a particular country share similar characteristics as people who have been raised and live in another country. As further explained in the next section, some people who assume that first- and second-generation immigrants share the same patterns of behavior as people from the country of origin of the immigrants overemphasize culture rather than context in explaining behavior.

Additionally, advocates and legislators sometimes incorrectly suggest that harms that ensue from a practice that is the subject of the ban are similar to the harms and impact of that practice in the foreign country. Theories that accept that the substantive content of rights are universal are not able to articulate a significant basis to resist this type of decontextualization. Using the lens of decontextualization, below I examine the discourse surrounding laws to ban sex-selective abortion, which have mushroomed in state legislatures in the United States.

Supporters of bans on sex-selective abortion decontextualize behavior when they assume people in India and China abort female fetuses and, therefore, most Asian American²⁷ women do too. Bills to ban sex-selective abortion have been introduced in the U.S. Congress for many consecutive years and the text is almost identical across the various versions. The federal bill introduced in 2016 asserts that Asian Americans practice sex-selective abortions in the United States in the same way that people in Asia do: “Evidence strongly suggests that some Americans are exercising sex-selection abortion practices within the United States consistent with discriminatory practices common to their country of origin, or the country to which they trace their ancestry.”²⁸ In Chapter 4, I explain why this conclusion is unfounded.

Advocates for sex-selective abortion bans also decontextualize motives. They assume that Asian American women who sex-select do so with the same motives as women in their countries of origin. They argue that a preference for boys in India and China causes Asian American women to abort female fetuses to avoid having a female child. For example, a report by the Judiciary Committee of the House of Representatives, undertaken in connection with the federal legislative ban on sex selection, states that “the selective abortion of females is … the intentional killing of unborn females, due to the preference for male offspring or ‘son preference.’ ”²⁹ The report explains why “son preference” exists in other countries: girls are a financial burden and do not carry the family name.³⁰

The report further suggests that the motives of Asian American women are the same as those for women in Asia. Our study of recent U.S. Census data, however, finds that Asian Americans do not necessarily have a son preference; they want to have both sons and daughters. Indeed, both a new analysis of sex ratios in the American Community Survey from 2008 to 2012 and a poll of Asian Americans suggest that a few Asian Americans appear to be attempting to balance their families so they have one boy and one girl rather than sex-selecting due to a preference for boys. The results of a national survey of Asian Americans presented in Chapter 4 supports this conclusion.

Supporters of sex-selective abortion bans also decontextualize harms. Based on their understanding of its harms in India and China, they argue that sex selection is harmful in the United States in three ways. First, they believe that because sex-selective abortions have resulted in a significant number of “missing women” in India and China, it will have the same impact in the United States. For example, the federal bill that would ban sex-selective abortion states that “sex-selective abortions have the effect of diminishing women in the American population” and that “sex-selection abortion results in an unnatural sex-ratio imbalance.”³¹ The magnitude, however, is not the same in the United States. One article found that sex-selective abortions occurring among Asian Americans has resulted in at most 1,000 “missing women” in the United States from 1983 to 2002, which is approximately 50 per year.³² On the other hand, estimates in India reach as high as 700,000 “missing women” per year.³³

The preamble further notes, “an unnatural sex-ratio imbalance gives rise to … human trafficking … kidnapping and other violent crime.”³⁴ While some empirical studies have indeed found that societies with a surplus of men are marked by more violence and instability, there is no such surplus of men in the United States. In Chapter 6, I discuss in greater detail the consequences of a sex-ratio imbalance in India.

Second, advocates for the bans believe that most women in India are forced to undergo sex-selective abortion through physical violence and mental abuse. They assume Asian American women are under that same pressure. The problem here is not only that the harm is decontextualized, but also that the understanding of what actually occurs in India is itself distorted. With globalization, information travels quickly across borders but that information is only a snapshot of the complex reality of the situation in other countries. The media often packages information in sound bites that are filtered through stereotypes about foreign peoples.

The mainstream understanding in the United States among anti-abortion advocates and pro-choice voters alike is that most women in India—through physical or emotional coercion—are forced to abort female fetuses. This coercion narrative prevails in the documentary It’s a Girl.³⁵ This film, funded by anti-abortion advocates, has received accolades from Ms. Magazine, the National Organization for Women, and Amnesty International. The filmmakers extensively interview and depict the life of Mitu Khurana, a pediatrician who left her husband because he physically abused her after she refused to abort her female fetuses.³⁶ The film, however, fails to depict what more commonly occurs in India: women make the choice to abort female fetuses without physical violence or overt coercion. There is no doubt that some women in India are coerced through violence, but the documentary presents no other narrative.

The depiction of women in India as coerced is then projected onto Asian American women. The federal bill to ban sex-selective abortion extensively cites from a study by Puri et al. in which she interviewed 65 South Asian immigrant women recruited from a clinic that provides sex determination tests.³⁷ One-third of the 65 women cited past physical abuse and neglect related specifically to their failing to produce a male child.³⁸ But while it is true—and disturbing—that many of the women experienced domestic violence, the emphasis on the women who cited coercion neglects the fact that two-thirds of the women in the study did not cite coercion. Moreover, the sample was not representative of all Indian American women; it consisted of women who specifically sought sex determination tests. The federal bill also highlights the work of the photojournalist Walter Astrada, whose documentary tells the story of a woman from India who was pressured to abort her twins, but resisted that coercion. It turns out that this is the same woman featured in It’s a Girl—who bravely refused to abort her twin girls despite her husband’s threats.³⁹ Some state sex-selective abortion bills specifically include prohibitions on coercive abortions, sanctioning the view that coercion is a part of most sex-selective abortions.⁴⁰

However, direct physical coercion is not the only explanation for sex selection in India. Women may choose to sex-select to gain status in their household. They may have empathy for the unborn girl: they do not want a girl to endure the gender-based discriminatory society they have had to endure. In Chapter 5, I describe the Indian context in greater detail to compare and distinguish it from the United States. This nuanced narrative is absent from the mainstream American media.

Third, proponents of sex-selective abortion bans point out that sex selection is discriminatory when practiced in the United States. In his submission to a House committee, U.S. Representative Lamar Smith stated: “The reason for opposing sex-selection is uniform: the desire to combat discrimination.”⁴¹ The preamble to the congressional bill to ban sex-selective abortion also notes that it is needed to promote equality.⁴² However, social institutions, history, and other contexts are relevant in defining something as discriminatory, and sex-selective abortion reflects social institutions in India that perpetuate inequality. Many of those social institutions are not prevalent in the United States even though other forms of gender equality still persist.

Moreover, empirical evidence in the United States suggests that the practice of sex selection as carried out in the United States by a few people does not appear to be significantly gender-biased, as discussed in Chapter 4. Some may believe that sex selection is wrong for eugenic, moral, or for other reasons—but it should not be considered discriminatory to women and girls in the United States just because it is carried out in a discriminatory manner in India and reflects unequal social norms and institutions.

Decontextualization is problematic because it homogenizes people in a number of ways. First, the discourse does not adequately distinguish between the situation in various foreign countries. For example, “son preference” is assumed to drive behavior in both India and China. Adequate consideration, however, is not given to the historical and contextual differences between those countries. For example, the one-child policy has historically influenced the behavior of Chinese parents, but India has never had such a drastic policy.

Second, the discourse assumes that all Asian Americans share the same behaviors. This is problematic, because it fails to understand the differences in behavior and values among this group. Asian Americans include Indian Americans, Chinese Americans, Korean Americans, and others. Each of these groups is influenced by different religious, linguistic and cultural patterns. “Asian American” is a common label in the United States—it is used by scholars, advocacy organizations,⁴³ and social organizations.⁴⁴ Many universities have departments called “Asian American Studies.”⁴⁵ I use “Asian American” to include people who have recently immigrated from or whose parents, grandparents or other generations have emigrated from a country in Asia. It should be noted that there is disagreement about what groups should be included under the umbrella “Asian American,” and whether the category should be abandoned altogether given the plurality of people who are swept into that category.

Third, discussions of sex-selective abortion also fail to portray a more nuanced story about what occurs in foreign countries. India is a religiously and linguistically diverse country. Indeed, many states in India do not have male-skewed ratios at all. In the Indian state of Kerala, for example, the ratio of males born to females is close to the natural range. This suggests that parental sex-selection is not occurring. There is no one fixed “culture” that prevails throughout India as the discourse implies. However, there is no recognition of intracountry variation in sex-selection practices in the mainstream American discourse.

Fourth, the discourse assumes that the “culture” of people who live in Asia is the same as the “culture” of Asian Americans. It assumes (1) people in Asia favor sons over daughters, (2) this preference is caused by culture, and (3) these same cultural patterns replicate themselves among Asian Americans. The extreme version of this viewpoint ignores the role of context in shaping people’s behavior. It fails to acknowledge that specific social norms such as dowry or employment opportunities for women also influence behavior.

Finally, the discussions relating to the bans fail to recognize and distinguish between first- and second-generation immigrants. People from Asia first came to the United States as slaves and laborers in the late eighteenth century. Later, there was an influx of Chinese immigrants during the gold rush.⁴⁶ Today, 79% of Asian American adults are foreign born.⁴⁷ Most of the remaining 21% are likely second-generation immigrants, which means that they were born and raised in the United States. While recent immigrants may have cultural traits in common with people from their country of origin, the longer that immigrants live in the United States, the more they are likely to take on characteristics of the mainstream culture. This is often referred to as “assimilation.” Our research on sex ratios bears this out. When my coauthors compared the ratio of male to female children born to second-generation Asian Americans and Caucasian Americans in the American Community Survey from 2008 to 2012, we found no significant differences in the sex ratios for these two groups.

Certainly both first-generation and second-generation Indian immigrants share similarities with people living in India. They may celebrate the same religious holidays and share common values, foods, and traditions. The sex-selective abortion debate takes the comparison too far—it fails to see any distinctions between the two groups. Yet, people of Indian descent living in the United States clearly recognize these distinctions. Second-generation immigrants derogatorily refer to recent immigrants as “FOBs” or “fresh off the boat.” Indian Americans born in the United States are sometimes referred to as ABCDs or “American Born Confused Desis.” Desi derives from desh, which means nation or country, and a desi is a person from that country. It is used colloquially to mean someone from the homeland.⁴⁸ These labels reflect Indian Americans’ own understanding of themselves as a diverse group.

A crude theory of assimilation would posit that the longer an immigrant has lived in another country, the less likely she is to share cultural characteristics with people from her country of origin.⁴⁹ Of course, there are exceptions to this rule. Amish people retain their distinctive traditions and language even though they have lived in the United States for generations.⁵⁰ They are able to do this because they remain geographically isolated, do not send their children to American public schools, and limit their interactions with contemporary society.⁵¹ While some Indian Americans live in predominately Indian American communities, they are not isolated in the same way as the Amish.

Adopting laws based on decontextualized knowledge is problematic not only because it means that a law is adopted without properly reflecting on whether it addresses a problem in the jurisdiction where it is adopted, but also because there are other potential negative consequences. Indeed, the bans will lead to the profiling of Asian American women who are seeking abortions. The bans will create access barriers to all women who in some states now have to answer a battery of questions in order to obtain an abortion. Finally, if ruled constitutional, the bans will open the door to a host of other “reason-based” pre-viability restrictions, which would further limit the right to choose even during the first trimester.

Legislative representative advocates voting for the ban might assume that a practice that is prevalent in the country of origin of the migrant will also be replicated among immigrants when they move to their new home. This is because they may think that the practice is ingrained in the culture of the immigrant, which culture they believe to be the same or similar to the culture of people living in the country of origin of the migrant. This view is incorrect because culture is not fixed—it changes over time. In addition, there is an overemphasis on culture in understanding the reasons for an immigrant’s behavior and an underemphasis on context, as I explain in the next section.

References to the situation in other countries may simply be a strategic move by anti-abortion advocates. Those arguments are used to justify their primary goal—placing restrictions on abortion. Yet their advocacy sways people who do not normally support their goals (e.g., pro-choice people). In fact, many pro-choice state legislators have voted for these bans—I discuss this in Chapter 3. I argue below that assumptions about the behavior of Asian Americans made by some pro-choice feminists rest on a mistaken view about culture.

Culture vs. Context in Understanding Immigrant Behavior

In migrant-receiving countries, the role of culture is often overemphasized in explaining the behavior and acts of immigrants and their progeny. If “son preference” is thought to be part of the culture of people living in Asia, then it will be assumed that it is a widespread sentiment among Asian Americans if mainstream communities believe that culture is fixed and unchanging and that it is what drives the behavior of immigrants. On the other hand, too little emphasis is given to context in shaping behavior.

There is no agreed-on definition of “culture” across disciplines. I use “culture” to mean not just customs, usages, traditions, or habit clusters, but a set of control mechanisms for the governing of behavior.⁵² When I refer to “context” I mean factors that are outside of a person that guide and shape behavior. While a particular behavior can be motivated largely by “culture,” it could also be shaped by the specific situation and norms that the person encounters. Along the lines of what Knop, Michaels, and Riles call the “post-essentialist critique” of culture, I accept the view that a person’s culture is not fixed; it is dynamic and may change in response to his or her surrounding context.⁵³

Uma Narayan observes how many people in the United States define the behavior of people who live in India by their culture. She points out how the media and popular American views frame murders of married women in India as products of Indian culture (“dowry death”), while murders by abusive domestic partners in the United States are not framed in cultural terms.⁵⁴ Narayan points out how a similar incident (the murder of a wife by her husband) when it emerges in a foreign country is painted as more heinous and attributed to culture whereas in the United States that murder would simply be seen as an isolated crime. Sex-selective abortion discourse in the United States goes further and paints an incident in the United States in the same way that it is perceived to occur in a foreign country.

Legal scholar Leti Volpp’s article published in 2000, “Blaming Culture for Bad Behavior,” further points out that not only is culture blamed for the behavior of immigrants, but the understanding of culture is fixed and unchanging. To illustrate her point, she compares the dominant American discourse about underage marriage between Caucasian Americans and Mexican Americans. In the context of Caucasian Americans, underage marriage is generally viewed as outside of the norm, whereas underage marriage among Mexican Americans is attributed to culture.

Volpp’s work explains why this disparate treatment occurs. First, Volpp explains that the dominant American paradigm assumes that immigrant culture is fixed while mainstream American culture is fluid:

We sometimes assume culture to be static and insular, a fixed property of groups rather than an entity constantly created through relationships. This assumption is made much more frequently for outsider communities such as communities of color. Culture, for communities of color, is transformed into what Paul Gilroy calls a “pseudo-biological property of communal life.” Under such a paradigm, culture for communities of color is a fixed, monolithic essence that directs the actions of community members. Racialized culture thus becomes an essence that is transmitted in an unchanging form from one generation to the next.

We can contrast this racialized culture to culture that is considered to be “hegemonic”—the culture established as the norm. Hegemonic culture is either experienced as invisible or is characterized by hybridity, fluidity, and complexity.⁵⁵

Much of the discourse on sex-selective abortion among immigrant communities assumes that the culture of immigrants is fixed. It does not leave any room for the possibility that behavior changes with context as well as over time.

Second, practices of immigrants are assumed to be “rooted” in their culture while practices of Caucasian Americans are not. Volpp points out that “[t]hese visions of culture influence our perceptions of individual acts. For communities of color, a specific individual act is assumed to be the product of a group identity and further, is used to define the group.”⁵⁶

Third, by grounding the practices of immigrants in their culture, the practices are framed as misogynistic and contrasted with the practices of Caucasian Americans. Volpp writes:

Even while voluntary or forced adolescent marriages occur within white American communities, we do not conceptualize these practices as cultural phenomena characterizing white America. Rather, this undesirable behavior is projected beyond U.S. borders and characterized as an abhorrent practice imported by immigrants that undermines enlightened Western norms. This projection allows the United States to maintain a self-image as a progressive state with a progressive culture—especially in the arena of women’s rights—by naming as “other” the source of backward behavior.⁵⁷

Volpp further points out that contrasting immigrant culture with mainstream American culture “has the effect both of equating racialized immigrant culture with sex-subordination, and denying the reality of gendered subordination prevalent in mainstream white America.”⁵⁸ Thus, if parents from the mainstream culture were to abort a female fetus because they want a boy, people would not automatically assume that they are misogynistic.

Anna Korteweg, a Canadian-based sociology professor, observes a similar phenomenon. She studies honor-related violence, which she defines as a “family-initiated, planned violent response to the perception that a woman, as wife or daughter, has violated the honor of her family by crossing a boundary of sexual appropriateness.”⁵⁹ Identifying the dichotomy between how immigrant culture and mainstream culture is viewed, she notes that “discussions of honor killing and honor-related violence stigmatize and racialize immigrant communities while positioning immigrant-receiving societies as free of ‘barbaric’ violence in contrast.”⁶⁰

In her study of Great Britain, the Netherlands, and Germany, she also points out the overemphasis on culture in discussions about violence within immigrant communities. She notes that media reports suggest that once a girl from certain immigrant communities has done something to disgrace her family, they must resort to murder. These accounts fail to describe situations where solutions outside of murder are sought.⁶¹

Korteweg rightly argues that culture is important in understanding the practice of honor killing but cautions against viewing it as a “monolithic, deterministic force.”⁶² She warns against giving too much weight to culture in understanding the behavior of Asian and other immigrants. She also emphasizes context and points out that many immigrant children are often exposed to a different social context at school and in their homes.⁶³ However, she does not explain how the concept of honor killings itself gains meaning from context. The context-based lens I propose here provides a new perspective.

In a small rural community in Pakistan, a family may feel a very strong sense of honor/dishonor if their daughter violates a community norm, for example by dating a boy (or another girl). In Canada and other migrant-receiving countries, the situation is different—immigrant families do not always live in close proximity to one another. Many do not have to encounter on a daily basis people who consider what their daughter did to be shameful. Moreover, in parts of Pakistan, communities may condone the murder of that girl. There is no similar mainstream community in Canada that would condone this behavior.

Thus, the murder of a daughter by her father in Canada for having premarital sex where the crime is not done in reaction to the “community” carries a different meaning than if the crime is committed in Pakistan where it may be encouraged and/or condoned by the community and done to preserve the father’s honor in that community. To put it another way, a crime is considered to be a “hate crime” (which usually means the criminal liability is escalated) only in reaction to the context where the crime occurs. A crime that is considered a “hate crime” in Pakistan should not be considered a “hate crime” in Canada just because the perpetrator is of Pakistani descent. This is not to say that honor as a motive does not exist in any circumstances in a murder of a daughter by her father for the breach of a cultural or religious norm.

In the early 1990s debates erupted about the use of the “culture defense” in cases where Asian immigrants were being tried for criminal offenses. Those discussions provide useful examples of how immigrant culture is treated in mainstream discourse. The core question in feminist legal literature on this topic was: against what standards should Asians be judged—the standards of the dominant American culture or the standards of the culture of people in Asia? For example, if a Hmong man kidnaps and rapes a woman as a way of marrying her—a practice undertaken in their country of origin—should he be able to refer to his culture in his criminal trial? Take another example—should a woman who attempted to kill herself after she killed all her children to escape domestic violence be able to present evidence about a similar practice of parent-children suicide in the country she emigrated from?

Doriane Coleman argued against the introduction of culture in criminal trials. She contends that the behavior of immigrants in the United States should be judged against American standards and not by the standards of the immigrant’s country of origin.⁶⁴ Leti Volpp acknowledges that it is a problem for feminists if men use “culture” as an excuse for causing physical or mental harm to women. But she further argues that the cultural background of the defendant should play a limited role in a trial.⁶⁵

If we understand culture and context to be separate, we gain insight into both the debates over the culture defense in trials and the debates on bans of purportedly harmful practices of immigrant women. Rather than refuse to admit evidence of culture, courts should admit and consider information about the culture of the country of origin of the immigrant only to the extent it was shown that this culture actually influences his or her behavior. This way, we do not presume that a homogeneous and unchanging culture accompanies migrants as they cross borders and remain in another country. Yet, the context of the United States should also be given weight.⁶⁶ This approach is not blind to the problems inherent in attempting to identify what encompasses culture. This solution recognizes that both culture and context shape the behavior of Asian Americans as well as other immigrant communities. Clearly the culture of the country of origin might be more relevant for understanding the behavior and motives of first-generation immigrants rather than second-generation immigrants.

Professors Knop, Michaels, and Riles’s insightful article proposes another flexible framework to resolve what they frame as the debate between Okin-style feminists who claim that women’s equality (as defined in Western feminist terms) should trump multiculturalism and multiculturalists who give priority to culture.⁶⁷ They draw from principles courts use in resolving conflicts of laws to determine when courts should consider foreign cultural and other norms and when they should not.

They explain how the conflict of laws approach would work by applying it to a hypothetical case that involves a father in Japan and a daughter living in California. The father transfers shares of a California subsidiary of a Japanese parent corporation to the daughter, but his intention is not to transfer actual control but only to transfer the stock in “name only,” which is a common practice in Japan to prevent potential disputes between siblings. The question is how relevant should the Japanese cultural norms and traditions be to an American judge deciding the case.⁶⁸ Their proposal to use a modified conflict of law framework allows a decision-maker to use one normative system for one purpose and another normative system to resolve another issue.⁶⁹

Context in Feminist Legal Theories and International Human Rights Law

There has been a dynamic relationship between American feminist legal theory and practice. Feminist legal theorists shaped litigation and advocacy strategies to promote women’s equality and the practice influenced how the theories evolved. These theories are often used in evaluating laws from the perspective of women’s equality. The perspectives were used by feminist lawyers and advocates to evaluate whether a law promotes, inhibits, or has a neutral impact in respect to women’s equality. When American legal feminism theories emerged to address inequalities in one domestic context—the United States. These theorists did not face a world with massive immigration. Today practices like sex selection, veiling, and female genital cutting move beyond borders more than ever. Recent feminist scholarship has begun to address women’s rights issues across multiple countries. It observes that country context is relevant in determining the human rights implications of immigrant practices. I discuss geographic context in traditional and emerging feminist legal theories and international human rights law and theory below.

Context in Traditional Feminist Legal Theories

Contemporary legal feminism traces its roots to the 1970s when early feminist activists struggled against laws that were formally unequal. They pushed for women to be able to engage in traditionally male-dominated activities. Prior to the 1970s, many laws contained sex-based distinctions. For example, only women could receive alimony, only men could be drafted, and the age of majority was different for men and women.⁷⁰ Essentially, laws were motivated by the idea that a woman’s appropriate role was in the private sphere of home and family. The form of feminism, which reacted against such laws, is often referred to as “liberal feminism.”

In the 1970s, court victories erased many formal gender-based distinctions in the law. One prominent example is the case of Reed v. Reed where the U.S. Supreme Court found a statute that permitted only men to be executors of an estate unconstitutional.⁷¹ It should be noted that liberal feminists would advocate changing not only laws that seem to benefit only men, but also laws that benefit only women. For example, they helped in eradicating the “tender years rule” that gave women preference in child custody cases.⁷² These feminists emphasized women’s similarity to men. Most liberal feminists would not push the law beyond formal equality with men.

In liberal feminism, context is not very relevant in questions about laws and women’s equality. Making laws gender neutral and ensuring formal equality is assumed to promote women’s equality regardless of their impact on society. That is, liberal feminists assumed that giving women the same rights as men would translate into women’s equality. It was difficult for them to contend with biological differences where equal treatment could be disadvantageous to women.

Taking feminism in new directions, scholars emerging in the 1980s emphasized women’s differences from men and proposed that any evaluation of laws and policies should take that fundamental notion into account. Taking their cue from Carol Gilligan’s work, cultural feminists found that women’s behavioral differences were tied to their sex.⁷³ Critics of cultural feminism argue that sex “essentializes” women’s behavior.⁷⁴ While these feminists took into account social context, it was mostly fixed—all women shared certain traits and they were different from those of men.

Anti-subordination legal theorists also emphasized the difference between men and women. Men’s and women’s different roles and privileges in society contributed to women’s inequality. If men and women were not equal in society, then treating them the same in the law would not necessarily promote equality. These scholars believed that gender was socially constructed rather than fixed. According to a prominent anti-subordination theorist, Catharine MacKinnon, women’s inequality in society was the result of oppression by men, not biology. MacKinnon’s approach rejects the idea that men and women should be treated identically. Instead, she believes that in some cases identical treatment can lead to subordination. These theorists would be willing to deviate from formally equal laws if they will benefit women in practice.

Even though the impact of laws must be evaluated within the social context, MacKinnon’s theory did not imagine social context to vary so significantly. Her theory is animated by the assumption that society is defined by male dominance over women. In her view, the legal system was principally designed to perpetuate male dominance over women. Sexual abuse and sexual relationships were the fundamental ways in which women were oppressed. Consequently, even under dominance theory, if a policy promotes women’s equality in one country context, then it would be assumed to have the same impact in a different country context.⁷⁵ Thus, these feminist legal theories did not seem to conceive of the possibility that a practice could be oppressive to women in one context, but not oppressive to women or neutral to women’s equality in another geographic context.

The anti-essential feminist theorists’ critique of the dominant strands of feminism in the 1990s is also relevant here. Those theorists have argued that the dominant feminist understandings were shaped by the concerns and goals of a very specific class of women. Some feminists called this essentialism “false universalism,” where the unstated norm is the white, middle-class, heterosexual woman.⁷⁶ Angela Harris, for example, argued that Catharine MacKinnon’s understanding of rape ignored the experiences of black women for whom rape is linked with gender and race.⁷⁷ She also argued that the motherhood experience varies for women of different races.⁷⁸ Other scholars have pointed out that mainstream feminist legal theories have largely ignored lesbian women and assumed that their experiences are the same as those of heterosexual women.⁷⁹ These theorists’ basic point is that women differ on the basis of race, sexuality, class, and other things. To treat them the same is problematic for a host of reasons, including the fact that policies developed around white middle-class women’s experiences do not necessarily apply to all women.

Race is the lens often used for analysis and critique in critical legal studies, but Indian American women and Indian women living in India are arguably of the same “race.” Scholars have pushed anti-essentialist feminist theory further to acknowledge that even those two groups of women should be distinguished. Consequently, an anti-essentialist feminist view would posit that a policy solution designed to address women living in India would not necessarily be appropriate for women living in the United States who are of Indian descent.

Context in Critiques of Governance Feminism

Janet Halley, Chantal Thomas, Hila Shamir, and Prabha Kotiswaran’s main goal in their groundbreaking article in 2006 was to describe a trend in international and humanitarian law where a certain form of American feminism (primarily dominance theory) infuses international institutions, as well as the discussions and negotiations of international treaties. They label this type of feminism “governance feminism.” Their critique does not explicitly argue that governance feminism is problematic because it is insensitive to country context, but the threads for this argument are present in their work. I develop those threads in support of my argument that a practice can call for a radically different response in different country contexts.

Critics of governance feminism do not necessarily oppose the influence of domestic feminism on the international realm; rather, they appear to disapprove of the fact that only a certain form of feminism is elevated to the international realm. Their critique is important because it is the first to identify how feminism (and specifically a certain brand of it) has been exported from the United States to international institutions and then transposed to the domestic level in other countries.

Although the critics of governance feminists do not expressly point to the importance of context in designing policy solutions on women’s rights, it is clear that they view geographic context as important. First, Halley points out that it is problematic to use radical feminist understandings of rape, which were developed in a non-war context, in war situations. She argues that the Kunarac case before the International Criminal Tribunal for the former Yugoslavia is an example of where this was done. The defendant in that case was convicted for the rape of a woman he transported out of detention. The court assumed that she did not consent to the sex, because it occurred in a war-like setting. Here Halley sees the imprint of radical feminists, who “have long argued that, in rape trials, force, resistance, and consent/non-consent are the wrong issues of coercive circumstances.”⁸⁰ Imposing what she calls radical feminist views in the war context could lead to overenforcement, because any sex in a war setting could be considered rape.

Second, Shamir’s case study suggests that regulations on sex work might be appropriate in one context but not in another. She notes that governance feminism, “well-intentioned as it may be—is pre-loaded with a strong tendency to overlook or underplay the costs it might cause to some and fix its gaze on the benefits gained by others.”⁸¹ She expands on this by arguing that it is necessary to focus on the impact a policy has on many groups in determining whether or not to adopt it; she then analyzes the policies of several different countries on sex workers in those countries.⁸² Shamir applies a cost/benefit analysis to evaluate policies concerning sex workers in three different countries. Engaging in this type of balancing test assumes that policy solutions to women’s equality issues are not fixed and can vary with the context.

Third, Thomas’s case study of the negotiations of the international agreement on trafficking (Palermo Protocol) can be interpreted to illustrate the problems that ensue when feminist approaches to laws in one country context are transposed to another country context. Thomas describes the dominant strands of feminist thought on sex work and observes how they have manifested themselves in the negotiations of the Palermo Protocol.⁸³ These feminists, drawing inspiration from MacKinnon, argued that all sex work is trafficking because it enforces subordination of women by men. Thomas describes these views as follows:

Women are prostituted precisely in order to be degraded and subjected to cruel and brutal treatment without human limits; it is the opportunity to do this that is exchanged when women are bought and sold for sex… [L]iberty for men … includes liberal access to women, including prostituted ones. So, while for men, liberty entails that women be prostituted, for women prostitution entails loss of all that liberty means.⁸⁴

On the other end of the spectrum are the individualists who believe that sex workers frequently exercise choice in choosing to perform sex work. They therefore believe that not all sex work is trafficking. The individualists disfavor a definition of trafficking that fails to recognize that some sex work is undertaken by choice and thus is not trafficking.⁸⁵ Another, less vocal, camp framed sex work as simply the right to work, a form of wage labor.⁸⁶ The view pushed by the Clinton administration “conceptualized prostitution and trafficking as distinct; envisioned the possibility of non-coerced prostitution; it also emphasized the centrality of human rights.”⁸⁷ This liberal framework emphasized autonomy.⁸⁸ Ultimately, Thomas notes that both the liberal and structuralist feminist views prevailed in the treaty language that was eventually adopted.⁸⁹

MacKinnon’s view is that prostitution is detrimental to women’s equality and should be outlawed everywhere. I argue against this universal approach to women’s equality and rights. In some countries like India, many sex workers would not be able to provide the basic necessities like food and shelter for themselves and their children if they were not able to undertake sex work. There are few alternative jobs available to sex workers, particularly in a place like India, where sex workers are shunned by society. While there certainly are sex workers in the United States who engage in sex work just to have enough money to eat, most do not operate at that level.

While the harms of sex work might be the same across countries (dignity harms, greater risk of violence, etc.), the costs of a ban will not be. A ban in a place like India could result in the inability of many women to support themselves. In other countries, a woman is more likely to avoid costs like ostracism and may be able to find other paid work. Like Shamir, I believe that in weighing competing rights at stake in banning sex work, the legal outcome could be different in a country like the United States than a place like India.

Governance feminism seems to push for policy solutions developed in one country context to other country contexts. Typically, it pushes a more developed country’s policies onto a less developed country. This harkens back to the law and development work undertaken in the early 1960s and 1970s, where Western lawyers and advocates embarked on reforming and strengthening regimes in emerging economies.⁹⁰ The problem was that the model laws they proposed were developed in Western countries and they neglected to tailor the laws to the specific context of the destination country, and in many cases the transplanted laws did not work to accomplish their goals.⁹¹

Sex-selective abortion bans are in a way a reverse transplantation of laws—from a less economically developed country to a more developed country. Advocates for the bans in the United States often argue that because India and China ban sex selection, the United States should also do so. This reverse transplantation is problematic for many of the same reasons that the law and development movement has been criticized.

Context in Karima Bennoune’s Work

Professor Karima Bennoune’s groundbreaking work more explicitly foregrounds context in evaluating bans on practices that are thought to be harmful in one context, but then emerge in other country contexts largely through human migration. She examines veil bans and argues that whether or not they are appropriate depends on the context. As she notes, her proposal provides “an innovative contextual approach to assessing the legality of bans in public schools on ‘modest’ garments claimed to be required by religious beliefs of Muslim women.”⁹²

She elaborates that a contextual analysis of bans on modest dress of Muslim women would involve examining a number of factors, including:

[T]he impact of the garments on other women (or girls) in the same environment; coercion of women in the context, including activities of religious extremist organizations; gender discrimination; related violence against women in the location; the motivation of those imposing the restriction; Islamophobia, if relevant, or religious discrimination in the context; the alternatives to restrictions; the possible consequences for human rights both of restrictions and a lack thereof; and whether or not there has been consultation with impacted constituencies (both those impacted by restrictions and by a lack of restrictions on such garments), and, if so, what their views are.⁹³

She examines two court decisions—the European Court of Human Rights (ECHR) judgment in Sahin v. Turkey (2004)⁹⁴ and the British House of Lords judgment in Begum v. Headteacher. In Sahin, the ECHR found that Turkey’s ban on the headscarf in universities did not violate the European Convention on the Proection Human Rights’ Convention guarantee of religious expression. On the other hand, in Begum, the House of Lords upheld a school’s ban on the jilbab, which is a long cloak covering everything but the head, hands, and feet.⁹⁵ While she appears to be open to the possibility that veil bans are permissible in some countries but not in others, Bennoune finds the bans to be justified in Turkey and the United Kingdom.⁹⁶

In Sahin, the issue before the ECHR was whether the Turkish ban violated a women’s right to free expression under the Convention.⁹⁷ Under the Convention, this right can be limited in order to protect the rights of others.⁹⁸ Bennoune believes that the Turkish ban was appropriate because “[e]ven to the extent that for some women, the choice to wear a headscarf is their own, and is for them an expression of religious belief, this limitation on that choice is necessary in context to protect the rights of others.”⁹⁹

She also concludes that in Begum the ban in the United Kingdom on the more restrictive clothing was appropriate in a situation where a less restrictive headscarf was still available and where there was evidence that some girls would have felt coerced into wearing the restrictive dress if it were not banned.¹⁰⁰ Bennoune points out that her conclusion that the bans were appropriate in both the Turkey and United Kingdom cases hinges upon the fact that they were in public educational institutions, which shape the identities of future generations and forge the public consensus about gender roles and equality.¹⁰¹

On the other hand, she argues that while bans in Turkey and the United Kingdom were appropriate, it would be inappropriate to ban it in the American law school where she teaches because so few women wear them.¹⁰² The magnitude of the practice in the context in which it occurs appears to be an important consideration in determining whether to ban it. Even though she believes bans in both Turkey and the United Kingdom were appropriate, her contextual approach to evaluate bans leaves open the possibility that in some contexts, veil bans may not be appropriate. I build on this idea in developing the methodology I describe in the next section.

Bennoune also briefly discusses France’s 2004 law restricting religious dress in schools, but does not draw any conclusions about its legitimacy. She notes that the “the French law perches in between as a truly hard case.”¹⁰³ In Chapter 7, I discuss France’s full-face veil ban adopted in 2010, three years after the publication of Bennoune’s article.

Context in International Human Rights Law:

Universality vs. Cultural Relativism

The debate about whether international human rights should apply universally across cultures and countries or whether they should vary based on culture is age-old.¹⁰⁴ A “strong” cultural relativist would “assert that culture is the sole or primary source of the validity of a practice or claim to a moral right.”¹⁰⁵ The supporters of universalism often draw upon natural law and reason and argue that there are objective standards by which to judge human conduct and to create law. Universalism “assumes that there is law that is so basic, so ‘natural,’ that it exists in all communities.”¹⁰⁶

In the early 1990s, this binary frame for human rights also elicited much debate about women’s rights. What Western feminists might consider oppressive, Western relativists consider cultural preservation.¹⁰⁷ Take, for example, the practice that some call female genital mutilation while others label female genital cutting, which is a more neutral term. Feminists have debated whether or not the practice is oppressive to women in Africa or an acceptable cultural practice.¹⁰⁸

Tracy Higgins, a feminist and international human rights legal scholar, observed decades ago the parallels in the critiques made by anti-essentialist feminists against mainstream feminism to the critiques made by relativists to universalism.¹⁰⁹ She notes that:

… anti-essentialist feminists have attempted to rethink both the various descriptions of gender oppression that have been offered and the assumption that gender oppression can be described meaningfully along a single axis. Instead, they have focused on local, contextualized problems of gender oppression. In this sense, anti-essentialism’s criticism of general accounts of women’s oppression parallels cultural relativism’s critique of universal theories of human rights. Like cultural relativism, feminist anti-essentialism seems to lead to the conclusion that gender inequality cannot be explained cross-culturally.¹¹⁰

These observations recognize the intersection between feminist legal theory and international human rights law and practice as I do here.

Professor Higgins further observed the challenges in resolving the debate between the universalists and relativists. She pointed out that:

Confronted with the challenge of cultural relativism, feminism faces divergent paths, neither of which seems to lead out of the woods of patriarchy. The first path, leading to simple tolerance of cultural difference, is too broad. To follow it would require feminists to ignore pervasive limits on women’s freedom in the name of an autonomy that exists for women in theory only. The other path, leading to objective condemnation of cultural practices, is too narrow. To follow it would require feminists to dismiss the culturally distinct experiences of women as false consciousness.¹¹¹

I think there may be a narrow road between the two broad paths she lays out between the rejection of a common notion of gender equality and the rejection of all “cultural practices.”

While those feminist debates in international human rights are relevant here, I am not asking the same question they struggled with. Those conversations were about whether or not a seemingly sexist practice should be permitted in a country because it is part of the religion or culture of the country in which it is practiced. Rather, I am asking whether a practice that is considered to be oppressive in one country context should be automatically deemed oppressive in another country context. For example, the question I am wrestling with is whether the veil is oppressive to women in France or Belgium where it has not been traditionally worn and is worn by a relative few number of women. I am not asking whether or not the veil is oppressive to women in Iran where it is required by law or in a country where social norms dictate it. Few have seen these as separate questions, and I argue that they are not only separate questions but that they should be analyzed differently.

Of course whether the veil is oppressive in countries where it is mandatory or dictated by social custom is not totally unrelated to the question about whether the veil is oppressive to women who wear it in France. In order to understand whether or not a cross-border practice is harmful for women’s rights in the country of destination of a migrant, we must understand the reasons, scope, and consequences of the practice in the country of origin of that migrant. In this process of comparison, we may learn that the motives, consequences, and impact of the practice are entirely different in the country of origin of the immigrant than in the country of destination. We may also learn that they are similar. In its current state, international human rights practice and theory has left little room to consider whether or not cross-border practices change meaning when transported to another context—such that a practice can simultaneously be seen to violate human rights in one country context but not in another. Questions about these narrow sets of practices (i.e., brought from one country to another by migrants) get swallowed up by the larger debate about whether all human rights are universal or culturally relative.

Universality has largely won the day in international human rights law and practice. Today, international human rights organizations are reluctant to deviate from the principle of universality because (among other things) it gives their positions great moral authority. They may also feel uncomfortable taking conflicting positions on the same practice (e.g., that veil bans are appropriate in one country, but not in another). Scholars and advocates resist deviating from universality as it implies the acceptance of cultural relativism, the only other alternative currently available. Thus, the thrust of international human rights discourse also leaves little room for finding that a practice is a human rights violation in one context, but not in another. In the next section, I outline a context-based feminist proposal to evaluate whether or not a practice that raises women’s rights concerns in one context also contravenes women’s rights when it is practiced in another country context.

Transnational Feminist Legal Approach to Cross-Border Practices

As Professors Bowman and Schneider explain, there is a deep engagement and positive feedback between feminist legal theory and lawmaking. Feminist legal theory was used to push for changes in laws to guarantee equality in the 1960s and beyond.¹¹² For example, feminist arguments that pregnancy was an issue of gender equality led to new legislation known as the Pregnancy Discrimination Act.¹¹³ Litigation strategies and advocacy were also reflected in the work of feminist legal theorists. Catharine MacKinnon’s book, Sexual Harassment of Working Women, reiterates the legal theories about the harms of sexual harassment that had already been litigated by feminist lawyers.¹¹⁴

Liberal equality theory, dominance theory, and cultural feminism each had an important role in addressing and changing different types of discriminatory laws or in pushing for the enactment of laws to address women’s inequality where there were none before. Each of the strands of legal feminist theory was used to evaluate a law for the purpose of determining whether or not it promotes women’s position in relation to men’s position. While theorists might disagree about whether or not a law promotes women’s equality based on their perspective, their categories of analysis were typically men and women. Anti-essentialist feminist theorists soon pointed out that “women” as a category was too broad in conducting this type of legal analysis—it included women of many races, sexualities, and so on. Consequently, they argued that just because a law was thought to enhance equality for one group did not mean it would have that same impact on another group. I believe that to assume that similar policies would promote equality for women who are living in multiple country contexts is also to essentialize women.

Since the evolution of American feminist legal theory, the foreign-born population in the United States has grown significantly from fewer than 4.7% in 1970 to 13.1% in 2013.¹¹⁵ Migration is on the rise globally as well. Three times the number of people live outside their birth country in 2016 than did in 1960.¹¹⁶ Migrant-receiving countries are increasingly adopting regulations to address the behavior (or perceived behavior in the case of sex selection) of women immigrants and their progeny. Often knowledge of the practice as it is carried out in a foreign country informs policy decisions in migrant-receiving countries. But this knowledge is far from complete—it is packaged into sound bites sometimes filtered through stereotypes about the power dynamics between men and women in some foreign countries.

Feminist legal theory was created and evolved in the context of the United States. Liberal feminists pushed for facially gender-neutral laws and thought they would serve to equalize women’s position vis-à-vis men’s. Dominance feminism, on the other hand, is highly sensitive to the impact of a particular law in the context where it is adopted. Yet its methodology still calls for examining only the context where the law was adopted. Similarly, law and society scholars have long argued that context is important in understanding how law has developed, how it is enforced, and how it changes.¹¹⁷ But their focus generally was also on the context where the law was proposed to be adopted and not on any other context.

Cross-border practices push us to examine contexts beyond the one where a law is being proposed to be adopted. In understanding cross-border practices, I argue we must gain a better understanding of the country context where the practices originate through in-depth empirical analysis. It is only through broadening our gaze to these multiple contexts that we can recognize how practices change meaning with context. Professor Bennoune as well as the critics of governance feminism recognize that context can radically change the human rights impact of a practice and therefore the legal response to a practice should differ depending on the circumstances. For example, a practice like the veil, according to Bennoune, should be banned to promote women’s equality in one context, but need not be banned in another context for that reason.

Another theoretical lens that informs how social justice advocates understand cross-border practices is international human rights law. There is a growing movement in the United States to use international human rights norms and accountability mechanisms to push for social change.¹¹⁸ Nongovernmental organizations increasingly participate in UN institutions by writing shadow reports, hosting panels and speakers alongside major UN conferences, and writing reports that utilize international human rights laws and norms. In other countries like France, which I discuss in Chapter 7, regional human rights conventions provide an even stronger basis for individuals to challenge domestic laws.

While American feminist legal theory would focus on the context where a regulation is being considered, in evaluating cross-border practices through the lens of international human rights law, one might be tempted to focus on the context of the country of origin of the migrant. The universal perspective of rights suggests that once it is determined that a practice violates human rights in one context, it will be a rights violation (since rights are constant across geographies) when it emerges in another context. Indeed, the UN’s major policies on sex-selective abortion address it only in contexts where it first emerged like China and India and not in the United Kingdom or the United States where migrants from Asia are thought to practice it.¹¹⁹ The international human rights perspective does not necessarily encourage scholars and policymakers to deeply examine the migrant-receiving country context in evaluating regulations on cross-border practices.

On the other hand, the insights of the field of transnational law can be used to draw attention to the importance of both the migrant-receiving and migrant-sending context in evaluating whether a regulation on immigrant women’s behavior will promote equality or contravene it.¹²⁰ Since Philip Jessup conceptualized “transnational law” in 1956, a vast literature within that field has emerged.¹²¹ Harold Koh’s insightful article explains that transnational legal process is the interaction of domestic norms with international norms.¹²² Carrie Menkel-Meadow describes “transnational law” as the study of legal phenomena, including lawmaking processes, rules, and legal institutions, that affect or have the power to affect behaviors beyond a single state border.¹²³ The concept encompasses a growing web of global connections. Transnational law, however it is defined, is certainly distinct from international law, which governs the relationships between states/countries.

In a way it may be fruitless to attempt to define the substance of transnational law. Professor Zumbansen’s recent work describes transnational law more as a methodology. He notes:

Going beyond early work in international legal theory and partly drawing on the insights from transnational commercial law, we can begin to understand transnational law primarily as a methodological approach and less as a distinctly demarcated legal field, such as contract or administrative law. Transnational law, from this perspective, emerges foremost as a methodological lens through which we can study the particular transformation of legal institutions in the context of an evolving complex society.¹²⁴

Drawing on this understanding of transnational law, I propose a transnational feminist legal methodology. This methodology provides a way to sort through questions about women’s equality on a global scale. It proposes a global framework that can be utilized to provide local solutions. Professors Knop, Michaels, and Riles’s proposal was also to develop a feminist methodology to resolve the debate they describe as one between equality and multiculturalism. Although I frame the debate differently than they do, like them I do not come up with a resolution to the debate but rather develop a methodology for evaluating what equality means in relation to cross-border practices.¹²⁵ I call it a feminist methodology because it focuses on women in evaluating the competing rights that are often in question in bans on immigrant women’s behavior.

When people, practices, and knowledge move across borders fluidly and quickly, we need to consider multiple contexts to design appropriate regulations to these cross-border practices. As noted above, American feminist legal theory might point to one context (the country of destination of the immigrant) while international human rights law may suggest another (the country of origin of the immigrant). A transnational legal methodology, because of its emphasis both on the international and the domestic/local,—encourages us to focus on multiple contexts in evaluating a ban in one country. Transnational law highlights the interactions of domestic laws and contexts in the increasingly global web of connections among people, corporations as well as goods, services, and knowledge.

To evaluate whether or not a practice is discriminatory or oppressive to women in the migrant-receiving country, we must examine that context. Social institutions, historic subjugation and inequality, and other factors give meaning to the practice as discriminatory to women. Researchers should investigate why the practice is considered to be discriminatory or repressive to women. Is it because the practice is widespread or is it because of unequal social institutions? What are the social institutions that reflect gender inequality? In addition, the scope and magnitude of the practice should be determined.

In order to properly understand the human rights consequences of a practice as it emerges in a new country, I suggest also studying the practice in the context where it first emerged. How widespread is the practice migrant-sending country? What are the individual motives of the women who undertake it? What societal institutions contribute to the practice? As I have noted, perceptions about cross-border practices are informed by knowledge often channeled through the sound bites of media rather than by in-depth studies in the country of destination of the migrant.

After understanding the practices in the two contexts (the migrant-receiving country and migrant-sending country), I propose a comparative study of these contexts. Do women undertake the practice at the same rate in both countries? Do the same social institutions give rise to the practice in the country of origin of the migrant exist in the country of destination? What (if any) societal factors present in the migrant-receiving country that give rise to the practice are absent in the migrant-sending country? Are there different factors in the migrant-receiving country that explain the reasons for the practice? Through this comparative study, we can better determine the human rights impact of the cross-border in the migrant-receiving countries.

Both quantitative and qualitative approaches are necessary to understand the practice in context. Even though traditionally feminist scholars had rejected quantitative methodologies,¹²⁶ I embrace them and structure my own research in a way that takes into account the criticisms of the critical race scholars in regard to quantitative empirical study. Ascertaining the scope of the practice (i.e., how many migrants actually undertake the act) can best be done by quantitative methodologies. On the other hand, qualitative methods help understand the reasons why people engage in an act. The intent behind a person’s behavior is relevant to determine whether or not their behavior is discriminatory or violates human rights. To the extent that we can get honest responses, the best way to ascertain motives for behavior is by asking the people who undertake the behavior. This can be done through individual interview-based methods or through surveys of people that are representative of the entire group. Researchers may fail to undertake this survey-based research if they believe that the motives of immigrants in undertaking cross-border practices are the same as the motives for people who undertake similar practices in the country of origin of the immigrant.

Looking at the practice across multiple contexts helps to ascertain its human rights implications and also makes it possible to develop a legal test that can be used to evaluate bans across borders. The legal test should be transnational in its applicability, but must also be able to be used locally to implement solutions suitable to the context. Unlike universalist approaches, a transnational feminist legal approach is open to this possibility that a practice that appears to be harmful or discriminatory to women in one country context may not have that impact in another country context.

From an in-depth study of the context of the foreign country, it may also become clear that the knowledge and information about the foreign country is itself distorted. Knowledge is channeled through sound bites and stereotypes of foreign cultures as misogynist. In this narrative, women in some foreign countries are believed to be forced by men to undertake the practice and are viewed as being unable to make their own decisions or participate in any way in the decision-making process. Using comparative and empirical analyses, we gain accurate information about the multiple contexts in which a practice emerges.

My proposal is a pragmatic and realist approach that argues that a cost/benefit analysis be undertaken when there are competing rights at stake. When two competing rights are at stake, weighing the costs and benefits of bans may sometimes lead to the most meaningful solutions. The transnational feminist legal approach sees women’s rights through the global lens rather than the parochial domestic lens, but also proposes solutions that can be utilized in domestic policymaking.

The consequences of failing to contextualize and compare are grave. Policymakers will inaccurately understand and weigh the competing rights at stake in banning women’s practices. By emphasizing harms caused by a practice in another country, policymakers will overestimate the benefits of banning it in their own country. As a result, they undervalue the costs of a ban. Additionally, by relying on decontextualized explanations, policymakers fail to investigate the unique reasons and consequences of certain practices undertaken by immigrants. If policymakers examine the context in which the practice occurs and resist relying on the behavior and motives of people in other countries and the harms caused by practices in other countries, they will adopt policies that are more fair. If they do not, then they will adopt laws that harm women’s rights rather than promote them.

This book utilizes the transnational legal feminist methodology proposed in this section to evaluate bans on one cross-border practice—sex-selective abortion—from the perspective of women’s equality. Using the general principles of a transnational feminist legal approach that I articulated above, I develop a specific legal framework to assess bans on sex-selective abortion in Chapter 2. The goal of this legal test is to determine whether or not a ban on sex-selective abortion in any given context will promote women’s equality. My proposal is a feminist framework because it places women and girls at its center. I argue that the competing rights at stake in legal prohibitions on sex-selective abortion are the reproductive rights of women, on the one hand, and the harm that the widespread practice can cause to women as a group, on the other hand. The approach is contextual because it requires an evaluation of the way the practice is undertaken and its consequences in the geographic context where it is emerges. Under the framework, a ban might promote women’s rights on the whole in one country, but restrict it in another country.

In developing an approach to evaluate bans on sex-selective abortion, I engage with the spectrum of ethical views on the subject. Some oppose sex-selective abortion because they oppose abortion altogether. According to that perspective, no woman should have the right to an abortion, except in rare cases such as if it is necessary to save her life. Anti-abortion advocates see sex-selective abortion as sex discrimination against the fetus. Liberal feminists argue that sex-selective abortion should not be banned in any country since it impedes women’s autonomy. At the same time, they also believe that sex-selective abortion reflects discrimination in society against women and girls. Other feminists argue that while it should not be prohibited, it is morally problematic because those who obtain sex-selective abortions fail to acknowledge the distinction between gender and sex. Those who advocate for the right to procreative liberty argue that parents should be permitted to select (including by in-vitro fertilization and sperm-sorting) the appropriate gender balance of their families. I do not support the practice nor do I support a right to sex-select, but rather view the bans to be problematic because (among other things) they burden women’s ability to exercise the right to choose for non–sex selection purposes.

To contextualize the practice, I use evidence-based empirical methodologies to understand immigrant behavior and motives. In furtherance of this, I have collaborated with economists to examine sex ratios of Asian Americans. Contrary to popular belief, we found that sex selection among this group is very limited and nowhere near the scale found in India. In addition, a few Asian Americans appear to have a preference for family balancing rather than just a son preference. These findings are discussed in greater detail in Chapter 4.

Furthermore, as noted above a transnational legal feminist approach calls for a comparative and detailed examination of the situation not only in the country of destination of the immigrant, but also in their country of origin. In Chapter 5, I closely examine the practice of sex-selective abortion in India and its potential harm to demonstrate the fallacy of the “coercion narrative” and to argue that the harm in India of sex-selective abortion is on women as a group. Abortion of female fetuses by individual women on a massive scale has led to a sex ratio imbalance. This has led to a surplus of unmarried men in India. A sex ratio imbalance threatens to harm living women—for example, by increasing violence against women. In Chapter 6, I apply the transnational feminist legal framework to sex-selective abortion bans to conclude that the bans in the United States serve only to restrict reproductive rights and could also lead to other negative consequences without any potential benefits for the rights of women and girls.

The principles of a transnational feminist legal approach I articulate here are relevant to evaluating not only sex-selective abortion bans but also other bans on practices of immigrants in migrant-receiving countries that are thought to be harmful to women. In Chapter 7, I demonstrate how the debates on the full-face veil in France also made decontextualized arguments in support of the bans and failed to examine the harms in context. Using an evidence-based contextualized feminist approach to the question of veil bans in France would lead to better legal decision-making.