‘Gender’, ‘gender-based violence’, ‘sexual and reproductive health and rights’ (SRHR), ‘comprehensive sexuality education’, ‘unmet need for family planning’, ‘safe abortion’ and ‘unsafe abortion’, and ‘various forms of the family’: these terms appear regularly in United Nations (UN) resolutions, declarations and policy initiatives related to women’s international human rights. Accordingly, conservative states and non-governmental organizations (NGOs) have sought to purge this language from international law and global governance documents, claiming that it advances a radical feminist and lesbian, gay, bisexual, transgender and intersex (LGBTI) rights agenda. With additional impetus from the rise of patriarchal populist leaders worldwide, these efforts have recently gained ground, stalling and even blocking the progressive development, diffusion and state internalization of international women’s rights norms.
In this article, we situate these developments within the emergence of an increasingly coordinated attack on international women’s rights at the United Nations and other international fora. By engaging in strategic ‘norm spoiling’, ‘the process through which actors directly challenge existing norms with the aim of weakening their influence’ (Sanders Reference Sanders2018a: 272), spoilers seek to destabilize and eliminate women’s rights articulated in international law and policy and block the recognition of additional rights. While conservative critics have opposed the legal institutionalization of women’s rights for decades, the surge in patriarchal populist movements and governing regimes in recent years has invigorated and amplified these efforts, leading to greater international impact. The Trump administration’s embrace of women’s rights norm spoiling was especially significant and thus constitutes a major focus of our analysis.
As with norm building, norm spoiling involves numerous elements ranging from diplomatic lobbying to civil society mobilization to strategic issue framing and agenda-setting. Here we focus on spoilers’ efforts to disrupt the language of women’s rights. We identify three distinct tactics that together constitute this language-based spoiling and illustrate them with examples driven by recent US policy. The first is control of what people can say about women’s rights, such as the Trump administration’s reintroduction of the ‘global gag rule’, which denies funding to healthcare NGOs if providers discuss abortion. The second, alt, changes the meaning of women’s rights by reframing them as hostile to religious freedom or the ‘natural family’ (thereby pitting human rights against each other) or replacing international human rights with a smaller set of ‘unalienable rights’ defined by a national commission. The third is efforts to literally delete women’s rights by removing them from, or voting against, international legal agreements that use certain words, such as ‘gender’ or ‘sexual and reproductive health and rights’. As on our computers, control alt delete together function to interrupt, or to stop and restart. These three lines of attack likewise spoil norms through interruption, stopping the diffusion or implementation of rights and forcing women’s rights activists to instead restart or go back to defending basic principles and terms that had been widely adopted in international law.
These dynamics highlight the role of language in managing the tenuous nature of international consensus over international women’s rights. Despite high levels of official rhetorical support for women’s rights, state compliance is often lacking. Recognizing the need to continually reinforce and clarify international women’s rights norms, women’s rights professionals and activists have attempted to standardize legal and policy commitments at the United Nations through the development of a linguistic and conceptual lexicon. By targeting language, conservative advocates aim to undermine established normative understandings and thereby disrupt the progressive development and diffusion of women’s rights law.
Below, we briefly survey women’s rights norms in international law and global governance, locate norm spoiling within the scholarly literature and consider the role of recent patriarchal populist actors in accelerating attacks on women’s rights. We then provide examples of the growing influence of women’s rights norm spoilers working to control, alter or delete the language of women’s rights. More than ever, words vested with specific normative associations and interpretations have become battlegrounds for intense political contestation.
II. International women’s rights norms
Within the realm of international law and global governance, norms are standards of appropriate behaviour for an actor with a given identity that often develop through a ‘norm life-cycle’, whereby norm entrepreneurs (e.g. human rights advocates) build support for norm adoption, eventually leading to a ‘norm cascade’ and widespread norm institutionalization and internalization by states (Finnemore and Sikkink Reference Finnemore and Sikkink1998). They become legal norms when expressed through ‘hard’ and ‘soft’ legal instruments such as UN treaties, resolutions and multilateral outcome documents that outline state obligations. Basic minimal references to women’s rights norms are advanced by the 1948 Universal Declaration of Human Rights and the two 1966 International Covenants on Civil and Political Rights and Economic, Social and Cultural Rights (especially Article 2 on equal entitlement to all rights and freedoms without distinction as to sex). They are more fully developed in the 1979 Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), the 1993 Declaration on the Elimination of Violence against Women, the 1995 Beijing Declaration and Platform for Action, the 2000 UN Security Council Resolution 1325 on women, peace and security, and the 2013 UN Security Council Resolution 2106 on sexual violence in conflict, among other documents. The United Nations has promoted women’s rights through the Sustainable Development Goals, particularly Goal 5. Every year, the Commission on the Status of Women (CSW) seeks to produce agreed conclusions to further advance the action of states towards realizing their commitments. Several overarching normative standards echo throughout these instruments: states must ensure women and men enjoy equality in social, political and economic life; women must not be confined to stereotypical socially constructed gender roles; and women must control their own bodies, sexuality and reproduction.
CEDAW is one of the most widely ratified international human rights treaties, suggesting that women’s rights constitute established principles of international law. Only the United States, the Holy See, Iran, Palau, Somalia, Sudan and Tonga have refused to ratify. President Jimmy Carter signed CEDAW in 1980, but the treaty never received the two-thirds support from the Senate necessary for approval. In 2010, President Obama reopened ratification efforts, which failed (Baldez Reference Baldez2014). The Trump administration strongly opposed ratification; however, the Biden administration has indicated support (Biden and Harris Reference Biden and Harris2020).
In addition to treaties, declarations and CSW-agreed conclusions, women’s rights principles are promoted by the Committee on the Elimination of Discrimination Against Women, CEDAW’s treaty body. Made up of 23 experts, the Committee produces reports and general recommendations, often reflecting feminist political understandings, which serve as influential interpretations of international law. For example, CEDAW General Recommendation no. 35 on gender-based violence against women suggests ‘denial or delay of safe abortion and/or post-abortion care, forced continuation of pregnancy, and abuse and mistreatment of women and girls seeking sexual and reproductive health information, goods and services, are forms of gender-based violence that, depending on the circumstances, may amount to torture or cruel, inhuman or degrading treatment’ (UN Committee on the Elimination of Discrimination Against Women 2017: 7). The UN Human Rights Committee’s General Comment no. 36 on Article 6 of the ICCPR similarly interprets international law in support of abortion rights (UN Human Rights Committee 2018: 2). Such statements are considered controversial by critics because they specifically mention abortion rights, whereas state-endorsed treaties such as CEDAW reference reproductive rights more generally.
Recently, human rights advocates have sought to consolidate recognition of sexual orientation and gender identity (SOGI) rights in international law. Like women’s rights, these emphasize non-essentialist conceptualizations of gender and every individual’s control over their own body and sexuality. While no international treaty explicitly acknowledges SOGI rights as such, UN member states have introduced supportive joint statements in the General Assembly while the Human Rights Council passed its first resolution in support of the basic rights of LGBTI persons to be free from torture, imprisonment, violence and discrimination in 2011, and appointed an Independent Expert to monitor state conduct in 2016.
This legal landscape points to a paradoxical reality. Women’s rights constitute well-established normative principles of extant international law. At the same time, widespread ratification of treaties such as CEDAW and related initiatives does not indicate that states have necessarily moved towards greater internalization of international women’s rights norms. Nor do all states agree on what respect for women’s rights entails in practice. While the expansive understandings of women’s rights preferred by feminist women’s rights advocates have tended to dominate in UN committees and fora dedicated to rights promotion, state and non-state critics of women’s rights in general, and of feminist interpretations in particular, have inserted themselves into international law and policy-making in order to halt and reverse the progressive development and diffusion of women’s rights norms. In some cases, these norm spoilers challenge rights head on; in others, they utilize the language of rights, reinterpreting the meaning of rights to reflect their rival preferences (Bob Reference Bob2019). This pattern of contestation is not surprising – states have always attempted to manipulate international law to achieve their objectives (Hurd Reference Hurd2017). However, efforts to spoil women’s rights norms are becoming increasingly coordinated and effective.
Women’s rights are especially vulnerable to spoiling because many states have failed to take action to realize their commitments (Avdeyeva Reference Avdeyeva2007). One need only conduct a cursory survey of the actual status of women and girls around the world to understand that states regularly ignore their legal obligations. While there is nothing new about human rights hypocrisy, whereby states say one thing and do another, the women’s rights deficit in many places reflects not just a lack of capacity, but deeper ideological and cultural resistance. Indeed, this was already evident in states’ numerous signing statements and reservations – seemingly incompatible with the treaty – that accompanied CEDAW ratification (CEDAW Declarations and Reservations). Diplomats and activists have succeeded in forging a robust international women’s rights agenda at the United Nations, and mechanisms such as ‘persuasion’ may lead to CEDAW and related instruments receiving ‘acceptance by key actors’ in a state (Avdeyeva Reference Avdeyeva2007: 897). However, when rhetorical norm adoption is not accompanied by institutionalization and routinized compliance, or when these processes are destabilized by political contestation and shifts in government power, norms can quickly be eroded. This creates fertile terrain for spoilers, which aim not just to promote non-compliance, but to unmake international women’s rights law itself.
III. Human rights contestation and ‘norm spoiling’
International human rights literature has, until recently, tended to obscure the important role of conservative pushback in eroding international law. Once international legal norms emerge and reach a tipping point of acceptance, scholars focus on how best to promote commitment and compliance (Avdeyeva Reference Avdeyeva2007; Finnemore and Sikkink Reference Finnemore and Sikkink1998; Goodman and Jinks Reference Goodman and Jinks2013; Risse, Ropp and Sikkink Reference Risse, Ropp and Sikkink2013; Simmons Reference Simmons2009). In contrast, attention to anti-women’s rights campaigns suggests that established legal norms may be revised and even reversed by counter-advocacy. Although there is a growing body of literature on women’s rights contestation in international politics (Buss Reference Buss2004; Buss and Herman Reference Buss and Herman2003; Butler Reference Butler2006; Chamberlain Reference Chamberlain2006; Chappell Reference Chappell2006; Crossette Reference Crossette2013; Cupać and Ebetürk Reference Cupać and Ebetürk2020; Druelle Reference Druelle2000; Goetz Reference Goetz2020; Guns Reference Guns2013; Krizsán and Roggeband Reference Krizsán and Roggeband2018; Neal Reference Neal1998; Sanders Reference Sanders2018a) as well as the closely related issue of SOGI rights contestation (Ayoub and Page Reference Ayoub and Page2020; Bob Reference Bob2012; Kuhar and Paternotte 2017; Nuñez-Mietz and García Iommi Reference Nuñez-Mietz and Iommi2017; Symons and Altman Reference Symons and Altman2015; Weiss and Bosia Reference Weiss and Bosia2013), the rapid pace of emerging developments demands ongoing attention.
Scholars are still learning how norms are weakened and undermined. In this regard, research on norm contestation tends to examine how local normative preferences and politics reshape international norms (Wolff and Zimmermann Reference Wolff and Zimmermann2016), how norms are revised through practice and implementation (Wiener Reference Wiener2008, Reference Wiener2018) and how actors use other types of principles and interests (such as sovereignty or security) to challenge human rights norms (Heller, Kahl and Pisiou Reference Heller, Kahl and Pisiou2012; Hopgood Reference Hopgood2013; Panke and Petersohn Reference Panke and Petersohn2011; Sanders Reference Sanders2018b). Moreover, while the extant literature offers extensive insight into the strategic ways in which NGOs and transnational advocacy networks seek to influence states (Bob Reference Bob2005; Keck and Sikkink Reference Keck and Sikkink1998; Moghadam Reference Moghadam2005; Stroup and Wong Reference Stroup and Wong2017), we know less about the mechanisms and impact of competing forms of advocacy on policy outcomes (Bloomfield and Scott Reference Bloomfield and Scott2016; Bob Reference Bob2012, Reference Bob2019; Corredor Reference Corredor2019; Deitelhoff and Zimmermann Reference Deitelhoff and Zimmermann2020; Meyer and Staggenborg Reference Meyer and Staggenborg1996). Our research thus aims to paint a richer picture of tactics that impact the development, legitimacy and sustainability of international women’s rights (Joachim Reference Joachim2007; Krook and True Reference Krook and True2010).
In particular, this article develops the literature on human rights erosion by refining Sanders’ (Reference Sanders2018a) conceptualization of ‘norm spoiling’ through a new typology of language-based spoiling mechanisms. We differentiate efforts to control, alter or delete words essential to framing and enacting rights, while recognizing that these tactics are overlapping and interrelated. We selected illustrative (Ackerly and True Reference Ackerly and Jacqui2020: 173–74) rather than comprehensive textual examples of each tactic so future research can build on our elaboration of norm spoiling with additional cases, examples or mechanisms. Our primary focus is recent, US-based initiatives to spoil global sexual and reproductive health rights norms. We analyse language in several fora, ranging from a domestic commission to UN committees and related texts, including US government policies and reports, US-based NGO documents and advocacy, and UN agreements. We interpret legal, policy and political texts as our ‘objects of analysis rather than a window into an external social reality or truth’ (Ackerly and True Reference Ackerly and Jacqui2020: 197). Roggeband and Krizsán (Reference Roggeband and Krizsán2020: 30–31) draw a useful distinction between policy dismantling and reframing. We document the blatant dismantling of norms by denying funds needed to implement them (in Section V) and removing or blocking words from legal documents (Section VII). Reframing norms is most central to Section VI, but silencing or deleting words can also reframe an issue. We recognize that these tactics interconnect; thus, we employ qualitative ‘critical frame analysis’ throughout, focusing on ‘how certain problems are framed, which issues are ignored, and how particular representations grant authority to an actor or policy direction’ (Calkin Reference Calkin2016: 160).
This contribution brings much-needed focus to the crucial, and multiple, roles of language in international law. This is significant because language has direct and indirect material effects. As called for by Hudson (Reference Hudson2015: 414–15), this project therefore combines ‘discourse and materiality’ with its attention to the impact of legal language on bodies and, in particular, sexual and reproductive health. At a literal level, legal words denote who has power, who can access resources or exercise rights. It is thus not surprising that debate over the precise placement and meaning of words constitutes a central focus of treaty and legislative negotiation, as well as subsequent lawyering and judicial interpretation. More broadly, repeated use of terms and phrases in legal documents and policy-making helps to consolidate and reinforce crucial shared understandings of underlying norms and their regulative and prescriptive content.
When meanings are altered or words are silenced or removed, these shared understandings and concomitant manifestations in real-world policy are also weakened. As UN experts report with regard to the growing challenge of language contestation, ‘gender equality policies are discursively delegitimized, often in concealed ways. Official political discourses that are largely supportive or silent on gender equality start to openly challenge gender equality objectives, often opposing formally adopted and accepted national policy positions’ (UN Women 2019b: 6–7). Relatedly, Roggeband and Krizsán (Reference Roggeband and Krizsán2020: 30–31) use frame analysis to understand the ‘reversal or dismantling’ of women’s rights, noting that ‘re-framing policies from targeting equal opportunities to, for example, protecting family values’ can undermine gender equality. For instance, international norms have been stripped of gender equality content when translated into national policies framed in terms of individual rights, as Krizsán and Popa’s (Reference Krizsán and Popa2014) research on Central and Eastern European domestic violence policies demonstrates.
Of course, contestation of language is also accompanied by other spoiling strategies such as appointing spoilers to key policy positions, excluding feminists from decision-making, leveraging financial resources, lobbying politicians and diplomats, advertising and propaganda, and mass electoral and protest mobilization (Sanders Reference Sanders2018a). Efforts to control, alter and delete words are only a partial – but crucial – element of the attack on women’s rights. Focusing on language-centred norm spoiling highlights how the most serious threats to norms do not always take the form of crude defiance. The Trump administration exuded overt hostility and indifference to international law (Birdsall and Sanders Reference Birdsall and Sanders2020); however, its quieter, less dramatic efforts may prove more damaging in the long term. Alarming norm breaches, such as Trump’s boasts about sexual assaults, or tweets and comments insulting women leaders, provoked mobilizations to defend women’s rights (Havercroft et al. Reference Havercroft, Wiener, Kumm and Dunoff2018: 9–11). Meanwhile, the Trump administration’s support for manipulating and undermining the language of women’s rights in governance policies and international legal documents was more discreet but potentially more durable.
IV. Women’s rights norms spoilers: Patriarchal populist and conservative alignment
Efforts to undermine international women’s rights in recent years have been animated by a deepening alliance between traditional – often religiously inspired – conservatives and rising far-right populist movements and regimes. Several charismatic populist presidents and prime ministers have given these conservative movements and regimes higher profiles, international allies and institutional clout. Former US President Donald Trump and several other populist leaders around the world have advocated returning to traditional families and sex roles and attacked those who have challenged gender binaries. Trump, Jair Bolsonaro of Brazil, Rodrigo Duterte of the Philippines, Victor Orbán of Hungary and Matteo Salvini of Italy, to name a few, ‘all link the new political order they seek to create to a more subordinate and traditional role for women’ (Beinart Reference Beinart2019: 14). These leaders vary in terms of which other groups they attack and which economic policies they advocate, but they are united in their ‘desire to roll back the feminist gains of the last several decades’ (Reference Beinart2019: 11). In rallies and public statements aimed to excite their followers, they denigrate both feminist principles and prominent women, and engage in misogynist rhetoric ranging from Duterte’s exhortation of soldiers to shoot rebel women ‘in the vagina’ to render them ‘useless’ to Trump’s frequent cry of ‘lock her up!’ (Reference Beinart2019: 13–14).
This political trend has been called ‘authoritarian populism’ (Norris and Inglehart Reference Norris and Inglehart2018) and ‘authoritarian nationalism’ (Beinart Reference Beinart2019: 12). Most of these leaders also can be categorized as right-wing populists based on their nativist and natalist nationalism (Lacatus Reference Lacatus2019: 224) and traditionalist populists due to their desire to return to or reinforce traditional notions of the family (Stoeckl and Medvedeva Reference Stoeckl and Medvedeva2018). Recognizing how these authoritarian, nationalist, natalist and traditionalist elements all feed into gender inequalities, we dub this group of leaders and their governments ‘patriarchal populists’ in order to underscore their open attacks on gender equality and women’s rights. Populists pit a ‘corrupt elite’ against a ‘pure people’, but populism is a ‘thin ideology’ that is always layered with other ideologies (Mudde and Kaltwasser Reference Mudde and Kaltwasser2017: 1669). For patriarchal populists, feminists are corrupt elites and those opposing feminism are the pure people. Patriarchal populists in power provide an influx of ideological and political energy by layering populist ideologies onto conservative ideologies about gender, sexuality, and sexual and reproductive health.
Some scholars argue that the concept of patriarchy oversimplifies intersectional oppressions or denies women’s agency, while others use the terms ‘patriarchy’ or ‘patriarchal’ in thoughtful analyses of regressive gender politics (Arat Reference Arat and Tezcür2020; Schleusener Reference Schleusener, Dietze and Roth2020: 194; Wiesner-Hanks Reference Wiesner-Hanks2018: 321–22). We use the term to draw attention to a set of populist governments that reinforce binary and heteronormative gender hierarchies and that try to obscure intersectional complexities. We recognize that gender intersects with other identities in multiplicative forms of domination; moreover, many women have demonstrated agency through political action explicitly calling out patriarchy, as in contemporary protests featuring slogans such as “smash the patriarchy” (Wiesner-Hanks Reference Wiesner-Hanks2018: 321).
Populism takes many forms, and political scientists study populism in several ways: as an ideology, a mobilization strategy, a set of attitudes or a form of political rhetoric (Lacatus Reference Lacatus2019: 223–24). To some, it is a ‘style of rhetoric’ calling for the people, rather than the elites, to rule (Norris and Inglehart Reference Norris and Ronald2019: 4). We too focus on language but move beyond populist speeches to examine how contemporary populist administrations have latched onto and amplified pre-existing transnational initiatives to undermine the words essential to women’s human rights. Challenging both multilateralism and gender equality resonates with patriarchal populists’ antipathy to both globalism and feminism, which they see as elite intrusions on the popular will.
Patriarchal populists build on and strengthen the work of conservative governments and organizations that previously spearheaded traditionalist attacks on women’s rights, often in the name of nationalism and/or religion. Long-time state critics of international women’s rights principles active in international law and global governance debates include the Vatican and its UN mission, the Holy See, which has permanent UN observer status and has provided ideological leadership for decades; the United States under Republican administrations; a variety of post-Soviet, Islamic and Catholic-identified countries; and regional organizations and inter-state coalitions such as the Organization of Islamic Cooperation, the League of Arab States and elements of the G77 and the UN Africa Group (Goetz Reference Goetz2020; Sanders Reference Sanders2018a). Many of these states cooperated to resist explicit recognition of abortion rights and challenged non-essentialist notions of gender at the 1994 Cairo and 1995 Beijing conferences and related follow-up meetings (Sanders Reference Sanders2018a). States have recently assembled under the auspices of the Group of Friends of the Family, a network of 25 UN member countries led by the authoritarian states of Belarus, Egypt and Qatar, which aims to undermine policies that they allege erode heterosexual marriage and women’s traditional roles as wives and mothers (Group of Friends of the Family 2015). A similar coalition endorsed the anti-abortion ‘Geneva Consensus Declaration’ in 2020 (US Department of Health and Human Services 2020), as discussed below.
These strange bedfellows have overcome significant political, religious and cultural differences in pursuit of their shared antipathies. This highlights a central feature of norm spoiling, which is based more on a common enemy than a uniform substantive vision of politics (Sanders Reference Sanders2018a). In this way, undermining norms is easier than building them because it does not require consensus on alternatives. At the same time, through their shared hostility to women’s and LGBTI rights, diverse actors engage in forms of cooperation and mimicry that make them more alike as they work to build societies characterized by patriarchal power relations, mandatory heteronormativity and the legal or even violent exclusion and oppression of people deemed deviant or subversive.
At the regional level, so-called ‘anti-gender’ campaigns have become highly influential in recent years, producing model messaging and policy that have been emulated in several contexts. In both Europe (European Parliamentary Forum 2018; Kováts and Pető Reference Kováts and Pető2015; Kuhar and Paternotte Reference Kuhar and Paternotte2018) and Latin America, the anti-gender movement is animated primarily by right-wing populists, but also sometimes more left-leaning figures such as Rafael Correa of Ecuador. As Corrêa, Paternotte and Kuhar (Reference Corrêa, Paternotte and Kuhar2018) explain:
In both regions, these movements contest what they call gender ideology. Sometimes referred to as gender theory or genderism, it is presented as the matrix of the combatted policy reforms … No less importantly, gender ideology is seen by some as the cover for a totalitarian plan by radical feminists, LGBTQI activists and gender scholars to seize political power. Crucially, this discourse recaptures and reframes Cold War Catholic discourses against Marxism and stirs anti-communist sentiments in Eastern Europe as well as in Latin America.
Montoya (Reference Montoya2019: 463) highlights the populist framing of LGBTI human rights as an ‘external threat’ in conflict with ‘religious nationalist identity’ in the European Union, which can impede norm internalization, a dynamic also observed by Ayoub (Reference Ayoub2016: 201). Furthermore, far right groups sometimes use human rights frames, such as protecting European women from the immigrant ‘Other’, characterized as sexist or homophobic, while simultaneously undermining human rights implementation: European ‘far right groups use human rights discourse to justify their anti-immigrant sentiments at the same time they work against gender equality initiatives’ (Montoya Reference Montoya2019: 463–64; see also Ayoub Reference Ayoub2016: 204). The gap between ratification of and compliance with women’s rights treaties in Eastern Europe (Avdeyeva Reference Avdeyeva2007) set the stage for further efforts to not just ignore but undermine these treaties. In other regions of the world, parallel trends have taken on their own historically and culturally contextual expressions (Moghadam and Kaftan Reference Moghadam and Kaftan2019).
On the non-governmental side, numerous conservative NGOs, such as the Heritage Foundation, C-Fam, Civil Society for the Family, Family Watch International, United Families International, the Family First Foundation, the UN Family Rights Caucus, Heartbeat International, International Right to Life Federation, the Population Research Institute, Alliance Defending Freedom International, Concerned Women for America, REAL Women of Canada, and CitizenGo, have targeted international women’s rights for revision. Many of these organizations have consultative status at the United Nations, allowing them to hold side and parallel events at UN conferences and influence diplomats alongside domestic lobbying (UN Department of Economic and Social Affairs 2019).
Moreover, both state and non-state critics of international women’s rights have joined transnational political networks. The World Congress of Families (WCF) has become a central showcase for these emergent alliances through their annual meetings. The WCF website features Orbán addressing WCF XI in Budapest in 2017 and boasting that he opened the summit and that ‘top ministers’ from his government helped to plan it (World Congress of Families 2019). WCF president Brian Brown (Reference Brown2019) wrote a public letter celebrating the swearing in of Bolsonaro, praising him for his statements and efforts to ‘combat the ideology of gender’. The increasing convergence and coordination of domestic, regional and international conservative forces was evident at the 2019 World Congress of Families in Verona, where speakers included Matteo Salvini of Italy’s far-right League, and politicians and activists from the United States, Hungary, Russia, Moldova, Australia, Uganda and Nigeria, among others, along with representatives of the Catholic, Orthodox and Mormon churches (World Congress of Families 2019).
Patriarchal populists are working to entrench their preferences within national and international governance. This leads to multidirectional advocacy between NGOs and states as conservative transnational advocacy networks influence states, and states in turn engage in diplomatic pressure and multilateral alliances to pressure other states. Moreover, once successful in capturing state foreign policy, conservative non-governmental activists become state representatives, serving in the bureaucracy and in diplomatic missions. For instance, at the 2017 UN Commission on the Status of Women, the Heritage Foundation and C-Fam joined the official US delegation to the conference. US diplomats at the United Nations were instructed by the Trump administration to deliver talking points drafted by C-Fam (Borger and Ford Reference Borger and Ford2019). The impact of these trends has been compounded by changes in UN processes, such as the growing pre-negotiation of CSW outcome documents, which has served to exclude feminist civil society activists from formative deliberations (Goetz Reference Goetz2020).
In their research on Russian support for traditional notions of the family, Stoeckl and Medvedeva (Reference Stoeckl and Medvedeva2018: 394–95) observe that between 2009 and 2016, ‘the traditionalist agenda has mobilized broad support among NGOs in the West’ and noted the presence of traditionalist NGOs within several countries, including the United States, whose governments had voted down traditionalist initiatives in the United Nations. This agenda subsequently gained support from the Trump administration and several other patriarchal populist governments. In the United States, Trump’s advocacy for traditional families and gender roles formed a central part of his appeal to evangelical supporters: ‘whatever their differences when it comes to the proper behavior of men, Trump and his evangelical backers are united by a common desire to constrain the behavior of women’ (Beinart Reference Beinart2019: 13). This contempt for women’s rights and international institutions converged in the Trump administration’s participation in women’s rights norm spoiling at the United Nations.
Not only have states failed to adequately ensure the realization of the international women’s rights norms to which they have committed, but some have also sought to alter extant agreements and limit the progressive development of international law. Arguing that international women’s rights principles have been too broadly interpreted by feminists (who are consistently cast in derogatory terms), women’s rights norms spoilers have for decades attempted to narrow and limit their application in light of sovereign prerogatives and traditional cultural sensibilities. In recent years, these arguments have resonated with patriarchal populists. Together, advocacy organizations and sympathetic governments work to spoil norms through controlling, altering and deleting language. We now turn to outlining what these tactics entail. We pay particular attention to US policy, US-based NGOs and the Trump administration because US power and influence give it disproportionate sway and enhance its capacity to damage international norms.
V. Controlling women’s rights language
The Mexico City Policy, periodically enacted by US administrations, remains one of the most destructive policy initiatives for women’s rights globally, not only because it restricts access to safe and legal abortion care around the world, but because it quite literally prevents women from talking and learning about sexual and reproductive health and rights. Antecedents include the 1973 Helms Amendment to the Foreign Assistance Act, which prohibited the use of US federal funds ‘for the performance of abortions as a method of family planning or to motivate or coerce any person to practice abortions’, and the US Agency for International Development’s (USAID) ban on ‘information, education, training, or communication programs that seek to promote abortion as a method of family planning’ (Ernst, Katzive and Smock Reference Ernst, Katzive and Smock2004). In 1984, the Reagan administration further entrenched the anti-choice position of the United States via executive order with the Mexico City Policy, which prevented NGOs outside the United States from receiving American financial support if, with their own funds and in accordance with local law, they performed or ‘actively promoted’ or discussed abortion as a method of family planning. The policy has been suspended by Democratic administrations and revived by subsequent Republican administrations, including the Trump administration.
The Mexico City Policy has been called the ‘global gag rule’ because it leverages much-needed US foreign aid funds to control what health providers can say to women. Providers are not allowed to inform women about the availability, safety or appropriateness of abortion care, even if asked by patients. These restrictions are rooted in US political preferences rather than professional medical protocols. In fact, the American College of Obstetricians and Gynecologists (2014) ‘supports the availability of high-quality reproductive health services for all women and is committed to improving access to abortion’.
The Trump administration extended global gag rule restrictions beyond funding for family planning initiatives to apply to the entire US$9 billion American global health assistance budget. Renamed ‘Protecting Life in Global Health Assistance’, the latest iteration of the policy covered all US granting agencies and cut off all funding, rather than just family planning funding, to NGOs that did not comply. As a result, it not only limited access to critical sexual and reproductive healthcare such as contraception, prenatal monitoring and HIV/AIDS prevention, but also tuberculosis and malaria care, tropical disease initiatives, and sanitation and hygiene programs provided by NGOs in poor countries (Filipovic Reference Filipovic2017). While the most obvious targets of the gag rule were large organizations such as the International Planned Parenthood Federation and Marie Stopes International, lack of clear implementation rules also undermined smaller country partners, which ‘had believed it applies to NGOs providing abortion only, and were not aware that it restricts client-level interaction and the provision of information, referrals and counseling, which is more relevant to their work’ (Planned Parenthood Global 2019: 15). Because of the damaging effects of such policies, other highly respected healthcare providers such as Médecins Sans Frontières have long avoided dependence on USAID so as to preserve their ability to offer ‘evidence-based policies in order to deliver the best possible care to our patients’ (Médecins Sans Frontières 2017: 3).
The gag rule not only stifles safe and legal abortion care (not to be confused with abortion rates, with the prevalence of unsafe abortions rising where safe and legal care is unavailable) but has had a chilling effect on the discussion of women’s sexual and reproductive health and rights. As reported by Planned Parenthood Global (2019: 27):
Organizations, particularly those complying with the global gag rule, are being selective about what they say publicly. For example, one interviewee noted … advocates are “going silent out of fear.” As a result, important evidence of impact – challenges, health issues, and even deaths from not being able to access necessary health care – is going unreported. This blocks country-level progress on a range of health outcomes: it weakens the effectiveness of civil society more broadly, and impedes our global understanding of the reproductive health and rights around the world.
The global gag rule has served as a crude method of controlling what can be said about women’s rights around the world. It forces a stark tradeoff: NGOs must not talk about the full spectrum of women’s reproductive health and rights or they lose funding for vital programs to help the world’s poorest citizens. This use of financial leverage to coerce speech produces direct material impacts for women. For instance, healthcare providers and experts in Kenya reported that a decline in safe and legal abortion care led to ‘a spike in unqualified practitioners performing abortions with tools such as knitting needles, as well as women ingesting traditional herbs, crushed glass or bleach to terminate pregnancies’ (Wadekar Reference Wadekar2020).
In response, women’s rights advocates led by ministers from Belgium, Denmark, the Netherlands and Sweden launched the She Decides initiative (2020), raising hundreds of millions of dollars to offset the financial impact of the global gag rule. As anticipated, the Biden administration rescinded the gag rule. But the harm to people’s ability to speak (and act) freely to advance women’s sexual and reproductive health and rights will remain for those subject to the residual effects of US policy.
VI. Altering women’s rights language
Another spoiling tactic alters the meaning of women’s rights by reframing women’s equality – particularly sexual and reproductive health and rights – as incompatible with other human rights, such as religious freedom, with purportedly foundational ‘unalienable’ rights, or with an ideal of the ‘natural family’.
Reframing women’s rights as antithetical to religious rights
As Clifford Bob (Reference Bob2019: 2) argues, ‘rights, including liberal rights, can also be used as weapons of politics and for illiberal ends’. By suggesting that women’s rights threaten religious rights, spoilers simultaneously undermine women’s rights and the concept of human rights indivisibility long promoted by international human rights law, namely the idea that human rights are inseparable and must be pursued in tandem. The arguments advanced by the Heritage Foundation, a non-governmental US think tank, are a revealing example of what we call divisible rights advocacy, pitting rights against each other – in this case, by reframing women’s rights as antithetical to religious freedom. Heritage also serves as an exemplary case study of the revolving door of influence between state and NGO norm spoilers.
The Heritage Foundation was founded in 1973 as a conservative advocacy organization. It hosts over 100 policy experts and has prominent offices near the US Capitol. It has been ranked as one of the most influential think tanks in the world, particularly for its policy impact (McGann Reference McGann2019). Its significant financial resources (Heritage Foundation 2018a: 54) enhance its capacity to effectively disseminate its message through media, outreach, research, legal advocacy and lobbying. Several Heritage experts, some of whom have worked in the US government, focus directly on social issues at the United Nations, religious freedom and women’s rights.
The Heritage Foundation has long opposed US ratification of CEDAW, arguing that the treaty would impose a ‘radical social agenda’ on American women and open the United States to illegitimate scrutiny and criticism from the CEDAW Committee (Melton Reference Melton2009). It is especially concerned that the CEDAW Committee has criticized ‘religious people’ and ‘conservatives’, and advocated for greater access to ‘sexual and reproductive health’. Because the Committee’s opinions contribute to the formation of customary international law, these opinions are deemed a threat to US sovereignty. Heritage experts have argued that ‘Under the Obama Administration, U.S. policy on social issues at the United Nations was often antithetical to life, family, and religious freedom’ (Melton Reference Melton2017) and urged the Trump administration to adopt a number of specific policies against women’s rights in order to reverse this.
In addition to supporting ongoing US rejection of CEDAW, the Heritage Foundation has advocated that the United States withdraw funding and support for the UN Population Fund (UNFPA) among other UN agencies and bodies. Not surprisingly, Heritage opposes the UN’s Free and Equal campaign promoting the rights of LGBTI people. Echoing debates in the US domestic context, it frames these initiatives as a threat to religious freedom, as well as free speech and parental rights, arguing that, ‘The addition of categories to anti-discrimination definitions based on SOGI conflicts with the individual’s core right to freedom of religion and belief in member states and at the U.N.’ (Kao and Melton Reference Kao and Melton2018). It further views the Sustainable Development Goals to measure and reduce discrimination and harassment under Goal 10, and to build inclusive societies under Goal 16, as potentially dangerous sources of SOGI rights affirmation (Melton Reference Melton2017).
These advocacy efforts have played an important role in shaping US policy. There is clearly a partisan aspect to Heritage’s influence, which is most effective in targeting Republican administrations and policy-makers, particularly the Trump administration. For instance, the Heritage Foundation (2018b) boasted that the Trump transition team employed 70 former Heritage employees and that the Trump administration adopted 64 per cent of its specific policy proposals, including defunding the UNFPA and reinstating restrictions on US foreign aid (i.e. the Mexico City Policy). Representatives from the Heritage Foundation and the NGO C-FAM (which is even more vociferously hostile to women’s rights) were included in the official US delegation to the 2017 Commission on the Status of Women.
Once again reframing women’s rights as an attack on religious freedom, the Heritage Foundation and the US government worked in tandem to disrupt the 2019 Nairobi Summit on ICPD25 (the 25th anniversary of the Cairo International Conference on Population and Development), organized by the UNFPA and the governments of Kenya and Denmark. The Summit aimed to achieve the goals of the ICPD, including providing access to family planning and preventing maternal deaths and gender-based violence (UNFPA 2019). The Heritage Foundation Associate for Social Issues at the United Nations, Grace Melton, critiqued the ‘international community’s laserlike focus on abortion and population control in spite of the strong cultural, moral, and religious objections of many’ (Melton Reference Melton2019a: 2). In case the religious freedom argument did not resonate as well outside the United States, she added that this summit was also ‘cultural colonialism’ (Melton Reference Melton2019b). The US ambassador to Kenya wrote an op-ed, published in Kenya and online during ICPD25, criticizing the conference as a pro-abortion event by global bureaucrats and quoting President Trump’s speech at the General Assembly earlier that year: ‘United Nations projects have attempted to assert a global right to taxpayer funded abortion on demand, right up until the moment of delivery … we in America believe that every child, born and unborn, is a sacred gift from God’ (McCarter Reference McCarter2019).
The US government participated in an ICPD25 side event, a high-level panel with government representatives of Hungary, Poland, Brazil, Kenya and the Holy See, to defend the ‘family’ and signed a joint statement with Belarus, Brazil, Egypt, Haiti, Hungary, Libya, Poland, Saint Lucia, Senegal, and Uganda that opposed ‘sex education that fails to adequately engage parents and which promotes abortion as a method of family planning’ (US Department of Health and Human Services 2019). Through their statements and global coalitions, the Heritage Foundation and representatives of the US government framed women’s rights at ICPD-25 as anti-religious rights. Many instances simultaneously framed women’s rights as a threat to the ‘family’, which will be discussed in more detail below. Several cooperating governments also had patriarchal populist leaders or active movements, so these frames resonated with their traditionalist, nationalist and anti-global governance orientations.
Replacing international human rights with unalienable rights
In 2019, US Secretary of State Michael Pompeo announced a new Commission on Unalienable Rights (CUR) within the State Department. The term ‘unalienable’, from the 1776 American Declaration of Independence, underscores the Commission’s emphasis on US-based rather than global rights and on old rather than contemporary conceptualizations of rights. These unalienable rights were to be drawn from the founding fathers of the United States. This initiative built on a longer history of state resistance to the expansion of international human rights law, which critics claim impedes state sovereignty (Benhabib Reference Benhabib2009). The Commission on Unalienable Rights provided a blueprint for an altered conception of women’s rights by suggesting that religious freedom is unalienable but women’s rights are not.
This Trump administration initiative targeting international women’s rights emerged alongside broader attacks on the UN human rights system. For example, the United States withdrew from the Human Rights Council in 2018, the year before Pompeo announced the formation of the Commission on Unalienable Rights, to ‘provide fresh thinking about human rights discourse where such discourse has departed from our nation’s founding principles of natural law and natural rights’ (US Department of State 2019b). The allegation of ‘departure’ facilitated further efforts to reject and revise international legal norms (discussed in “Delete” section). According to its charter, the Commission was formed to provide ‘advice and recommendations on human rights to the Secretary of State, grounded in our nation’s founding principles and the 1948 Universal Declaration of Human Rights. The Commission’s charge is not to discover new principles’ (US Department of State 2019a). In emphasizing a return to founding principles from 1776 and 1948, the charter suggested that later normative developments, such as CEDAW and the subsequent progressive development of international women’s rights law, were spurious. Although its role was advisory, by throwing established women’s and sexual and reproductive health rights into question as ‘departures’, ‘new’, or in conflict with other rights deemed to be ‘unalienable’, the Commission worked to spoil norms. Spoiling does not necessitate a coherent articulation of rival norms, just a growing sense that certain extant norms are uncertain or illegitimate (Sanders Reference Sanders2018a).
The Commission hearkened back to the founding of the United States, the United Nations and the Cold War era. Aversion to ‘new’ rights was clear in Pompeo’s Wall Street Journal op ed on the Commission:
Yet after the Cold War ended, many human-rights advocates turned their energy to new categories of rights. These rights often sound noble and just. But when politicians and bureaucrats create new rights, they blur the distinction between unalienable rights and ad hoc rights granted by governments. Unalienable rights are by nature universal. Not everything good, or everything granted by a government, can be a universal right. Loose talk of “rights” unmoors us from the principles of liberal democracy. That’s why I’m launching a Commission on Unalienable Rights at the State Department(Pompeo Reference Pompeo2019).
By replacing human rights with unalienable rights, Pompeo deemed some rights ‘by nature universal’, while implying that others (e.g. implicitly, more contemporary articulations of women’s rights) are not. Da Silva and Vieira (Reference Da Silva and Vieira2018: 20–21) argue that populism combines resentment and ‘redemption’ through a ‘distinctive temporal-moral structure’: ‘it uses an image of a historical or archetypal past – democracy as it was or as it ought to have been’ combined with the idea that ‘the present is painful and the future must come now’. Thus, the Commission’s recurring theme of nature, which invokes conservative visions of the ‘natural family’, gender essentialism and patriarchal power structures, along with its emphasis on a return to the past when women’s rights were nonexistent or less established, resonates with patriarchal populism.
In addition to emphasizing the past, the Commission prioritized religious freedom as a right so old and unquestioned that it was characterized as ‘pre-political’, natural and thus unalienable. In a 1 November 2019 meeting, Commissioner Meir Soloveichik questioned Harvard Law Professor Cass Sunstein:
Commissioner Soloveichik spoke next. He said that the founders often stressed that certain rights are pre-political – like the free exercise of religion. He asked Sunstein if some of the other rights contained inside the Bill of Rights are also pre-political. Continuing with a multi-part question, Soloveichik also asked whether the promotion of social and economic rights at the hands of government, however well meaning, will inevitably clash with individual liberty. (By way of example, Soloveichik noted that expanding health care coverage in recent times has been in tension with individual religious liberty claims.)(US Department of State 2019c)
This account is just one example of certain human rights, such as social and economic rights, being slighted by the Commission in its meetings. The primary documents on the ‘reading list’ posted on its website included: the Declaration of Independence, the US Constitution, the Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights, but not the International Covenant on Economic, Social and Cultural Rights, CEDAW or any other human rights conventions. Instead of indivisible and international human rights, the Commission created a hierarchy of unalienable rights versus new or, in the words of Pompeo, ‘ad hoc’ rights.
CUR Commissioner Katrina Lantos Swett was on the US Commission on International Religious Freedom (USCIRF) before she joined the Commission on Unalienable Rights. Established in 1998, the USCIRF, like the CUR, is an initiative supported by conservative Christian advocacy organizations and part of a global focus on religious freedom that has been criticized for its US- and Christian-centric policies (Hurd Reference Hurd2015). The newer Commission on Unalienable Rights is thus an example of a patriarchal populist administration taking prior initiatives to a new level. Swett pits religious freedom against women’s rights, especially reproductive justice. Consider this account from the official minutes of a 10 January 2020 exchange between Executive Director of Human Rights Watch (HRW) Kenneth Roth and Commissioner Swett about the freedom of religion article of the International Covenant on Civil and Political Rights (1966):
Swett was particularly troubled by a suggestion by Roth that health care providers’ religious rights of conscience could be easily overridden in rural contexts, if a woman’s alleged right to abortion was imperiled. Roth responded by emphasizing that the ICCPR, unlike the UDHR, was meant to be binding and thus must be honored. But Swett, while agreeing with that sentiment, once again pushed back against his characterization of the true rights clash at stake. In the abortion context, she asked rhetorically, which is a graver deprivation of rights – making a woman travel 100 miles (to obtain an abortion), or making a health care provider participate in what she considers to be a grave moral crime?(US Department of State 2020b).
Commissioner Swett favors her conceptualization of religious freedom over reproductive health rights in this exchange, and even the CUF minute taker subtly dismisses UN treaties, referring to Roth’s point that the ICCPR is legally binding as a ‘sentiment’.
Swett, Soloveichik and other commissioners appointed by the Trump administration were known public critics of reproductive rights, transgender individuals and marriage equality (Fitzsimons Reference Fitzsimons2019). Their final report avoids the word ‘gender’ and only mentions sexual or reproductive health in a sentence about controversies over ‘abortion, affirmative action, [and] same-sex marriage’ (US Department of State 2020a: 24). The report warns against the ‘temptation to cloak a contestable political preference in the mantle of human rights’ (2020a: 25). Claiming to support the indivisibility of human rights, the report nevertheless curates these rights: ‘for many reasons – ranging from our own constitutional traditions to the language of the Universal Declaration itself to prudential concerns about the abuse of rights – it is reasonable for the United States to treat economic and social rights differently from civil and political rights’ (2020a: 35).
As its role was advisory to the State Department, the Commission’s purpose was to shape US global and diplomatic initiatives, further spoiling norms of gender equity and women’s health. Although the unalienable rights framework and the use of religious freedom arguments to undermine gender equality will be sidelined during the Biden administration, these alternative policy frames and legal strategies remain available to lawyers, judges, future Republican administrations and patriarchal populist and conservative NGOs and governments around the world.
Recasting women’s rights within a ‘natural’ or ‘traditional’ family frame
Spoilers seek to replace women’s rights articulated in international women’s rights law with country-specific alternatives. Often these alternatives are based on notions of gender complementarity (i.e. distinct and unequal roles for men and women and a conception of family based in this ideology) rather than gender equality. This strategy resonates with anxieties that traditional heteronormative and patriarchal hierarchies are crumbling and fears that global elites are challenging national sovereignty and intruding on family life.
Many of the organizations listed above as women’s rights norm spoilers include the word ‘family’ in their names, from the UN alliance of 25 member countries known as Group of Friends of the Family, to NGOs such as Family Watch International, United Families International, Family First Foundation, International Organization for the Family, and more. The World Congress of Families, discussed above as a fulcrum for patriarchal populist leaders, advocates a ‘natural family’ approach in its opposition to reproductive and LGBTI rights.
The World Congress of Families is an international umbrella organization of global groups opposing LGBTI and reproductive rights, founded in 1997 by a former Reagan administration official, Allan Carlson. In The Natural Family: A Manifesto (Carlson and Mero Reference Carlson and Mero2007), Carlson and former executive vice president of the World Congress of Families Paul Mero summarize their ideology, which rejects equality in favour of complementarity: ‘The complementary natures of men and women, both physically and psychologically, are evident throughout the course of human history and in every society. Deviations from natural sexual behavior cannot truly satisfy the human spirit’ (quoted in Southern Poverty Law Center 2020).
While the unalienable rights agenda is US-centric, and the religious freedom argument is especially resonant in the United States but spreading quickly (Hurd Reference Hurd2015), the family theme arguably has been the most salient international unifier of the divergent conservative, nationalist, religious and patriarchal populist norm spoilers targeting women’s rights. The call to defend the family has drawn Evangelical, Catholic, Orthodox, Mormon and Muslim advocates, while reinforcing patriarchal populist messages about defending the nation and family against elite, global and/or feminist influences (Ayoub and Page Reference Ayoub and Page2020: 706; Buss and Herman Reference Buss and Herman2003; Group of Friends of the Family 2015; Stoeckl and Medvedeva Reference Stoeckl and Medvedeva2018).
Norm spoilers often use the ‘family’ frame to justify deleting words, such as ‘gender’, which the Pontifical Council for the Family deemed dangerous to ‘family life’ in its Lexicon of Ambiguous and Debatable Terms Regarding Family Life and Ethical Questions in 2003. Targeted words also include those adjacent to the word ‘family’ itself, such as when parties seek to block ‘various forms of the family’ from international treaties or agreements because it is an ‘elastic term’ being ‘actively used by sexual rights advocacy groups to achieve government recognition of their sexual lifestyles or their controversial family living arrangements’ (Family Watch International 2014). Thus these reframings of women’s rights feed into the strategy of scrubbing particular words from international legal documents.
VII. Deleting women’s rights language
Attempts to exclude and erase women’s rights language from international law constitute another longstanding norm-spoiling tactic. This is evident even in regard to CEDAW, the core women’s rights treaty. While CEDAW is now widely ratified, many states acceded with extensive reservations that sought to nullify its impact (CEDAW Declarations and Reservations). In some cases, states declared themselves not bound by particular treaty provisions, essentially excising them from their obligations, or announced that requirements would be interpreted in light of contradictory domestic laws, rendering them moot or – when it comes to their status as prescriptive words – mute.
In subsequent years, states intensely debated the adoption of further women’s rights instruments. The 1994 Cairo Conference on Population and Development and the 1995 Beijing Fourth World Conference on Women served as flashpoints. Disagreements over women’s rights increasingly coalesced around the use of specific words in outcome documents and legal texts. For both proponents and opponents of women’s rights, language became a battleground. Notable episodes of linguistic contestation included the process of drafting the Rome Statute of the International Criminal Court, during which conservative critics objected to references to ‘gender-based violence’ because ‘gender’ could be construed to acknowledge SOGI rights (Oosterveld Reference Oosterveld2014: 565). As a result, Article 7, paragraph 3 of the Rome Statute (1998) states, ‘the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.’ Moreover, ‘forced pregnancy’ was defined in the treaty so as not to infer a right to abortion: ‘“Forced pregnancy” means the unlawful confinement of a woman forcibly made pregnant, with the intent of affecting the ethnic composition of any population or carrying out other grave violations of international law. This definition shall not in any way be interpreted as affecting national laws relating to pregnancy’ (Article 7, paragraph 2(f)).
Yet despite spoilers’ efforts to delimit meanings of key terms, language evolves and becomes vested with shifting connotations. In such cases, spoilers have resorted to deleting words. The term ‘gender’ is a case in point. The varied usage of this term is evident in the UN Term database, which defines nomenclature in the UN system. For example, it cites the aforementioned Rome Statute definition of ‘gender’ in English, but also includes a UN Development Programme source to define gender as ‘A concept that refers to the social differences between women and men that have been learned, are changeable over time and have wide variations both within and between cultures’ (UNTERM Portal 2019). In the French version of the entry, an even more expansive definition of gender drawn from the Yogyakarta Principles, a non-governmental initiative to identify SOGI rights in international human rights law, is cited:
Condition liée au fait d’être perçu comme un homme, une femme ou comme étant situé entre ces deux pôles, qui est influencée par les aspects psychologiques, comportementaux, sociaux et culturels faisant partie du vécu d’une personne et ce, indépendamment de son sexe assigné à la naissance ou de son sexe biologique. [Condition related to being perceived as a man, a woman or as being between these two poles, which is influenced by the psychological, behavioral, social and cultural aspects that are part of a person’s lived experience, regardless of their sex assigned at birth or their biological sex.]
Further variance is present in the Russian, Chinese and Arabic definitions, which also emphasize gender as a social construction.
For their part, women’s rights advocates have identified the significance of advancing particular patterns of language for institutionalizing progressive and inclusive interpretations and understandings of what rights mean in international law. For instance, UN Women (the UN agency devoted to gender equality) has developed a GenderTerm database which ‘recognizes the importance of language in fighting gender bias and promotes the use of gender-inclusive language in all contexts and at all times. Gender-inclusive language refers to language that places both women and men at the same level, and which does not convey gender stereotypes’ (UN Women 2020). Returning to the core term ‘gender’, the Gender Equality Glossary suggests:
Gender refers to the roles, behaviors, activities, and attributes that a given society at a given time considers appropriate for men and women. In addition to the social attributes and opportunities associated with being male and female and the relationships between women and men and girls and boys, gender also refers to the relations between women and those between men. These attributes, opportunities and relationships are socially constructed and are learned through socialization processes. They are context/ time-specific and changeable. Gender determines what is expected, allowed and valued in a woman or a man in a given context. In most societies there are differences and inequalities between women and men in responsibilities assigned, activities undertaken, access to and control over resources, as well as decision-making opportunities. Gender is part of the broader socio-cultural context, as are other important criteria for socio-cultural analysis including class, race, poverty level, ethnic group, sexual orientation, age, etc.(UN Women 2019a).
The language of ‘sexual and reproductive health and rights’ is also increasingly important. This concept requires that women and all people should control their own bodies and reproduction, which implies access to medically accurate sex education, birth control and abortion care. The Gender Equality Glossary defines sexual and reproductive health rights (SRHR) as
the right for all, whether young or old, women, men or transgender, straight, gay, lesbian or bisexual, HIV positive or negative, to make choices regarding their own sexuality and reproduction, providing they respect the rights of others to bodily integrity. This definition also includes the right to access information and services needed to support these choices and optimize health.(UN Women 2019c)
Such definitions build on prior documents. For example, the notion of ‘reproductive health’ as articulated as far back as the Beijing Declaration and Platform for Action (1995: paragraph 94) included the provision that:
Reproductive health therefore implies that people are able to have a satisfying and safe sex life and that they have the capability to reproduce and the freedom to decide if, when and how often to do so. Implicit in this last condition are the right of men and women to be informed and to have access to safe, effective, affordable and acceptable methods of family planning of their choice.
‘Reproductive rights’, echoing CEDAW, include people’s rights ‘to decide freely and responsibly the number, spacing and timing of their children and to have the information and means to do so’, but are limited in practice by
inadequate levels of knowledge about human sexuality and inappropriate or poor-quality reproductive health information and services; the prevalence of high-risk sexual behaviour; discriminatory social practices; negative attitudes towards women and girls; and the limited power many women and girls have over their sexual and reproductive lives.(1995: paragraph 95).
Similar understandings are iteratively advanced in numerous international legal sources (Miller et al. Reference Miller, Kismödi, Cottingham and Gruskin2015).
When it comes to SRHR and abortion, the CEDAW Committee’s General Recommendation no. 30 on women in conflict prevention, conflict and post-conflict situations asserts that states are obligated to:
Ensure that sexual and reproductive health care includes access to sexual and reproductive health and rights information; psychosocial support; family planning services, including emergency contraception; … safe abortion services; post-abortion care; prevention and treatment of HIV/AIDS and other sexually transmitted infections.(UN Committee on the Elimination of Discrimination Against Women 2013: 14)
This complements similar CEDAW Committee and Human Rights Committee recommendations recognizing abortion rights.
The terminology of international women’s rights at the UN thus intentionally advances what one could broadly construe as feminist conceptualizations. In this sense, states and NGOs that oppose distinguishing ‘gender’ from biological sex differences, access to sexual education and birth control, and the right to abortion care are not wrong to see the repeated invocations of such terminology as a threat to their patriarchal preferences. Accordingly, in several instances states have tried – sometimes successfully – to literally excise these words from outcome documents.
The Catholic Church and its UN mission, the Holy See, has long championed attacks on what it calls ‘gender ideology’ (Case Reference Case2019) and advocated limits on objectionable words in international law. For example, the Pontifical Council for the Family published a Lexicon of Ambiguous and Debatable Terms Regarding Family Life and Ethical Questions in 2003. As explained by Anthony Favier (Reference Favier2015), ‘The book aims at explaining to Catholics the meaning of expressions that have become “problematic” in the modern age’. It highlights
“coded words” includ[ing] “gender” of course, defined as “a substitute for the word sex” that is used by “many feminists”. No less than three articles in the Lexicon are in fact devoted to criticizing this term. Overall, the text rules out any possibility of a positive use of the concept of gender.(Favier Reference Favier2015)
As stated in the preface to Lexicon, ‘Since the terms that have been made up are not really innocent, their authors seek to promote their methods as a way to reach their goals by changing the meaning of the terms. They do this to avoid rejection, which they see as a possible risk. The cunning use of ambiguous terms has reached worrisome levels’ (López Trujillo Reference López Trujillo2003). It furthermore argues:
A recent case that can illustrate this problem (and which is a case in point) is that of the CEDAW … This turns out to be evidently hostile to the family which is presented as a place of modern slavery. Consequently, it is claimed that being a wife and mother is equivalent to being discriminated against by those who uphold the moral principles that are anchored in true human rights. Although the “right” to abortion is not mentioned directly, in a subtle way this option is not excluded. Discretely, without making a fuss, the possibility will be taken up in other ways, either through the interpretation of the definitely ambiguous meaning of the phrase “reproductive health”, or with recourse to the instruments of abortion, or with the introduction of a new definition of abortion, confined to the later stages of pregnancy and not from the moment of conception to the implantation of the embryo. We are faced with a conceptual storm.(López Trujillo Reference López Trujillo2003)
In other words, ‘cunning’ feminists use ambiguous language to surreptitiously advance their agenda, requiring aggressive pushback. Such arguments are reflected in multiple Church documents, statements and speeches.
Similar positions are currently articulated by conservative NGOs. According to the Heritage Foundation:
In U.N. documents going forward, the U.S. should reject the addition of “sexual and reproductive health” (SRH) or “sexual and reproductive health and rights” (SRHR) language, especially when either term is used without the caveat that reproductive health does not include abortion.(Melton Reference Melton2017).
It moreover opposes references to ‘comprehensive sexuality education’ and ‘various forms of the family’, and objects to the concept of ‘gender identity’, arguing that, ‘Sex is a biological fact, not a feeling. Women and girls around the world face discrimination and harm as a result of historical and cultural factors related to biological sex’ (Melton Reference Melton2019a). The NGO C-Fam makes similar arguments and has expressed particular concern about the International Law Association’s efforts to incorporate an inclusive definition of ‘gender’ into drafts of a new crimes against humanity treaty (Gennarini Reference Gennarini2019).
State and NGO critics of international women’s rights have tried to keep certain words out of UN resolutions, and the Trump administration intensified these efforts. In addition to reintroducing the global gag rule and slashing funding to UN programs and agencies, the United States engaged in an aggressive campaign to remove language from documents (Gramer and Lynch Reference Gramer and Lynch2018). For example, in 2018, the United States opposed references to ‘gender-based violence’ in UN Third Committee discussions, advocating instead for anti-trafficking measures to refer to ‘violence against women’, reflecting concerns by conservative advocates about non-essentialist conceptualizations of ‘gender’. Around the same time, the US State Department altered the name of its webpage addressing ‘gender designation change’ on passports to refer to a ‘change of sex marker’ (Borger Reference Borger2018; Oppenheim Reference Oppenheim2018). A draft memo prepared by the Department of Health and Human Services sought to revise definitions under Title IX, the domestic statute prohibiting sex discrimination, so gender would be understood ‘on a biological basis that is clear, grounded in science, objective and administrable’ and ‘Sex means a person’s status as male or female based on immutable biological traits identifiable by or before birth’ (Green, Benner and Pear Reference Green, Benner and Pear2018).
In December 2018, the United States initiated a vote that aimed to remove references to ‘sexual and reproductive health’ from a UN resolution about violence against women (Sherman Reference Sherman2018). In discussions over the agreed conclusions of the 2019 CSW,
the United States joined Saudi Arabia, Bahrain, Malaysia, and the Russian Federation to demand removal of fairly standard provisions such as the use of the word “gender”, a reaffirmation of the Beijing Platform for Action, and references to sexual health and reproductive rights, to comprehensive adolescent sexuality education, and to portable social security benefits on migration.(Goetz Reference Goetz2020: 168).
Later that spring, the United States threatened to veto UN Security Council Resolution 2467 condemning sexual violence against women in war, allowing it to pass only after references to survivors’ rights to sexual and reproductive healthcare were excised (Ford Reference Ford2019; Powers Reference Powers2019). In October 2019, UN ambassador Kelly Craft (Reference Craft2019) criticized a UN Security Council women, peace, and security resolution that
refers to previous documents that include references to “sexual and reproductive health” … we cannot accept references to “sexual and reproductive health,” nor any references to “safe termination of pregnancy” or language that would promote abortion or suggest a right to abortion.
These manoeuvres are striking not only because they seek to deny women raped in armed conflict the right to healthcare, including safe termination of forced pregnancy, but also because they attempt to remove references to previous measures that include contested language. In this sense, they seek to halt the iterative progressive development of international women’s rights law.
These efforts are increasingly coordinated transnationally. In September 2019, the United States announced that it would join a coalition intent on stripping international law of words deemed objectionable (Cha Reference Cha2019). Issued on behalf of nineteen other like-minded states including Bahrain, Belarus, Brazil, Democratic Republic of the Congo, Egypt, Guatemala, Haiti, Hungary, Iraq, Libya, Mali, Nigeria, Poland, Russia, Saudi Arabia, Sudan, United Arab Emirates, and Yemen, the initiative announcement declared:
We do not support references to ambiguous terms and expressions, such as sexual and reproductive health and rights in U.N. documents, because they can undermine the critical role of the family and promote practices, like abortion, in circumstances that do not enjoy international consensus, and which can be misinterpreted by U.N. agencies.
It moreover stated that ‘only documents that have been adopted by all Member States should be cited in U.N. resolutions’ (Azar Reference Azar2019). In 2020, the United States joined with many aforementioned states and co-sponsors (Brazil, Egypt, Hungary, Indonesia and Uganda) to issue the so-called ‘Geneva Consensus Declaration on Promoting Women’s Health and Strengthening the Family’, affirming that
there is no international right to abortion, nor any international obligation on the part of States to finance or facilitate abortion, consistent with the long-standing international consensus that each nation has the sovereign right to implement programs and activities consistent with their laws and policies.(US Department of Health and Human Services 2020).
In March 2020, conservative NGOs cheered US withdrawal from the World Health Organization (WHO) amidst the COVID-19 pandemic, criticizing the WHO’s advocacy of reproductive healthcare, including contraception and abortion, as essential during the crisis. For example, a Heritage Foundation senior fellow called on the US government to demand the ‘restructuring of the WHO’s financing to concentrate on communicable diseases and responding to international health emergencies’ (Schaefer Reference Schaefer2020) and thus sidestep the endemic global crisis of women’s reproductive healthcare and steady death toll resulting from that. In 2017, about 810 women per day died from ‘preventable causes related to pregnancy and childbirth’ (World Health Organization 2019). Unable to control the WHO’s agenda and language, spoilers sought to end US participation altogether.
Efforts to delete words, veto language and undermine legal instruments or agencies that promote women’s rights are not merely academic; rather, they substantively weaken norms and, by extension, disable the international promotion of policies necessary for women’s equality, safety and health.
Attacks on women’s rights in international law and global governance are not new. Despite many achievements, women’s rights advocates have always faced opposition from states and NGOs that deride feminism and seek to preserve traditional and inequitable gender hierarchies. These spoilers have long sought to destabilize women’s rights norms, block their diffusion and prevent the advancement of progressive gains. The empowerment of patriarchal populist leaders in numerous countries around the world has significantly enhanced these spoiling efforts in recent years. Despite ideological and political differences, patriarchal populists, illiberal regimes and religious conservatives of various stripes share a deep disdain for women’s equality and inclusive conceptions of gender and sexuality.
While strategic norm spoiling takes a variety of forms, we have focused on three language-based spoiling tactics: control, alt and delete. Control involves leveraging money and political power to literally police what words women and women’s rights advocates can say. In the case of the US global gag rule, healthcare providers were forbidden to speak about abortion, chilling open dialogue. Alt tactics seek to reframe women’s rights by claiming that they threaten other rights or traditions. This challenges not just women’s rights, but the core conception of the indivisibility of rights. This is evident in US promotion of religious freedom as contrary to women’s rights and the US State Department’s Commission on Unalienable Rights, which pitted the language of older, US-based rights against newer and allegedly ‘ad hoc’ international women’s rights, as well as transnational efforts to frame women’s rights as hostile to the ‘natural family’. Delete tactics are efforts to remove women’s rights by excising words such as ‘gender’ and ‘sexual and reproductive health and rights’ from UN documents. Because words become vested with normative meaning, their inclusion and definition are critical. Together, these tactics interrupt, stop, and restart the development and diffusion of women’s rights, advancing norm spoilers’ political agenda.
The trends in language politics that we have traced in this article highlight underlying instabilities in international women’s rights norms. These norms are well established on paper through a variety of widely ratified international legal instruments; however, they are contested in practice, and now also increasingly in principle, as spoilers seek to undermine and delegitimize influential feminist interpretations of women’s rights. In this sense, the presence of women’s rights terminology in international law and global governance has not developed entirely in tandem with deeper substantive consensus over what state obligations actually entail, as evidenced by growing resistance to basic concepts taken as given by most contemporary feminists, international legal scholars and human rights professionals. Accordingly, the future sustainability and efficacy of women’s rights norms requires ongoing efforts to shape and disseminate shared understandings of rights language and concomitant state responsibilities.
Patriarchal populist and conservative state and NGO efforts to control, alter and delete language, and the multidirectional channels of influence between these agents, point not only to normal contestation dynamics, whereby actors negotiate and debate emergent or avant-garde principles, but also to concerted attempts to unmake extant international women’s rights law. The goal of spoilers is to erode past feminist gains and to force human rights advocates to re-litigate norms. At stake is not simply whether states are sufficiently ‘politically correct’ or whether international law is ready to adopt novel policies, but foundational questions about whether international women’s rights norms should challenge biological essentialism, reject gender inequality and protect women’s control over their own sexuality and reproduction. Should people’s genitals dictate how they are required to look and act, and whether they are entitled to equitable employment and public services? Should impoverished and traumatized survivors of wartime sexual atrocities be forced to carry unwanted pregnancies? Should young people have access to factual information about contraception and prophylactics? Such basic questions are directly implicated in current battles over the international women’s rights lexicon.
Ongoing struggle is required to define, maintain and expand women’s rights norms. Progressive states, the UN bureaucracy and women’s rights organizations can take steps to counter norm spoiling and patriarchal populism (Sanders and Jenkins Reference Sanders and Jenkins2021). In an era of democratic backsliding and rising illiberalism, in which feminist activists are often maligned and excluded from policy-making, this is both increasingly difficult and increasingly necessary (Goetz Reference Goetz2020; Roggeband Reference Roggeband2019). By identifying how spoilers control, alter and delete the language of women’s rights, we can better recognize the processes through which women’s rights are challenged and must be defended.