—Rosalind Dixon, University of New South Wales
Last month, the Hungarian Parliament elected the country’s first ever female president, Katalin Novák.[1] Novák is a former minister for family policy and close ally of Prime Minister Viktor Orbán. She is also young, telegenic, and happy to talk about her role as a wife and mother. For many Americans, she brings to mind Sarah Palin and her 2008 “hockey mom” pitch for the Vice Presidency.[2]
But as public lawyers what, if anything, should we make of her appointment? Since 2011, Orbán and the Fidesz party have wreaked havoc on Hungarian democracy. They have manipulated electoral boundaries and voting rules, and undermined judicial independence and other independent oversight bodies – and in ways that are likely to have lasting constitutional effects. Yet they are worried about the chances of opposition gains at the upcoming parliamentary elections. Their response: appointing a woman to prominent role in a bid to shore up support from female voters.
Descriptive representation of this kind benefits: it helps reset gendered norms and perceptions and provides potential role-models for others contemplating seeking high office. But it also has weaknesses: sometimes these kinds of appointments achieve limited or no change or are limited only to specific areas. Thus, the claim that notwithstanding the gains in-female board membership, gender equality doesn’t go beyond the boardroom.[3]
But there is even more at stake in Hungary. The threat is that women will be appointed to help successfully dismantle liberal democratic gains, including gains in the form of increased gender equality, and this form of appointment will be cloaked in the language of promoting (descriptive) female representation.
Orbán’s political ploy decouples the relationship between equality and self-government that lies at the heart of democratic constitutional ideals. Democracy is about the equal sharing of political power among citizens. And using an apparent commitment to equality to subvert democracy is inherently abusive in nature. In short, Novák’s appointment risks increasing the perceived legitimacy of a regime that is distinctly anti-democratic in approach and methods.
As David Landau and I note in our recent book on the topic, Abusive Constitutional Borrowing: Legal Globalization and the Subversion of Liberal Democracy (OUP 2021), many would-be authoritarians seek both inspiration and justification for their attacks on democracy from liberal democratic norms and ideals. They take the form of liberal democracy, without its substance. Or they take its substance in ways that are highly selective, acontextual and anti-purposive in nature. Dressing up authoritarian government with liberal democratic credentials subverts democracy in ways that are hard for domestic and international actors to detect and counter.
Abusive borrowing of this kind focuses on harms to what Landau and I call the “minimum core” of electoral democracy – harms that are in plain sight in Hungary, and which we show have run in close parallel with the stunning advances in gender equality in countries such as Rwanda. But imagine the use of descriptive female representation to undermine, not the minimum core of democracy per se, but thicker “feminist” commitments to substantive gender equality.
Feminism, of course, is a contested and plural concept, and in some cases political actors may seek in good faith to promote a different vision of gender equality to the prevailing consensus. [4] Think Phyllis Schlafly, compared to the proponents of the ERA.
But discourses which emphasize gains in women’s descriptive representation, while downplaying changes to substantive notions of gender equality and representation are not an act of good faith. They are arguably a form of “abusive feminist” tactics.
For this form of “abusive feminist” dynamic to work two things will be required: (1) a pool of suitably qualified women who oppose feminist goals or substantive commitments to gender equality, and (2) a public that assumes that in general “women help women” (and that pays limited attention to the track-record of individual women). The second condition may be under pressure in many countries, especially among elites. But it also persists in part because of feminist pressures for women publicly to maintain this idea, even if in practice they doubt its accuracy. Indeed, this pressure exploits one of the fundamental tensions within feminism – how much to emphasize commonality over difference among women.[5]
The first condition is increasingly satisfied in many countries, in part due to the hard-fought gains of earlier generations of feminists. Yet it is these victories – coupled with limited engagement by democratic voters – that can allow descriptive female representation to be used for anti-feminist ends.
Where this occurs knowingly or intentionally, it can also be regarded as an overt abuse of feminist discourse – or deliberate attempt to subvert the connection, in feminist theory, between descriptive and substantive forms of representation.[6] It is not simply the “purple washing” of regressive gender changes or policies.[7] It is a conscious form of purple washing as anti-feminist tactic.
Think about the likely role of Justice Amy Coney Barrett in the upcoming Supreme Court hearing on Texas’ abortion law. Barrett was clearly qualified for appointment to the Court.[8] She is also highly conservative on the question of access to abortion: she appears to have both sincere religious and originalist philosophical reasons for opposing the Court’s recognition of a constitutional right of access to abortion. And yet there were at least some voters who saw her as a suitable replacement for Ginsburg (a staunch protector of women’s rights and reproductive freedoms) because she was a woman.
This was a dynamic that President Trump seemed to count on in nominating her to the Court: there is no suggestion that as a justice or nominee, Justice Coney Barrett herself has engaged in bad faith. Rather, the suggestion is that the Trump administration almost surely did: the President knew that in nominating a woman, he could count on many voters to assume she would be committed to promoting women’s rights, and that as a result those who knew better (for instance, Senators Susan Collins and Lisa Murkowski) would have a harder time opposing her confirmation than if she were a man.[9] It was certainly the case there was greater public support for confirming Coney Barrett than for the confirmation of either Justices Kavanaugh or Gorsuch, when her views on reproductive rights may in fact be more conservative than one or both of those justices, at least given existing precent on the issue.[10] And Trump did not proudly announce Coney Barrett as someone who would oppose Ginsburg’s feminist legacy, but rather uphold it.[11]
The worrying thing, for feminists, is that this trend also seems to be on the rise globally – not just in Hungary, but elsewhere too.
Suggested citation: Rosalind Dixon, Abusive Feminism, Int’l J. Const. L. Blog, Apr. 6, 2022, at: http://www.iconnectblog.com/2022/04/abusive-feminism/
[1] Orbán Loyalist Katalin Novák Elected Hungary’s First Female President, THE GUARDIAN (Mar. 10, 2022), https://www.theguardian.com/world/2022/mar/10/orban-loyalist-katalin-novak-elected-hungary-first-female-president.
[2] Sarah Palin, Palin’s Speech at the Republican National Convention, N.Y. TIMES (Sep. 3, 2008), https://www.nytimes.com/elections/2008/president/conventions/videos/transcripts/20080903_PALIN_SPEECH.html.
[3] Marianne Bertrand, Sandra E. Black, Sissel Jensen and Adriana Lleras-Muney, Breaking the Glass Ceiling? The Effect of Board Quotas on Female Labour Market Outcomes in Norway, 86 REV. ECON. STUD. 191 (2019).
[4] See, for example, the work of feminist scholars such as Mary Ann Glendon.
[5] Rosalind Dixon, Feminist Disagreement (Comparatively) Recast, 31 HARV. J.L. & GENDER 277 (2008); Rosalind Dixon & Amelia Loughland, Gender Disruption, Amelioration and Transformation: A Comparative Perspective, in OXFORD HANDBOOK OF FEMINISM AND LAW IN THE U.S. (Deborah L. Brake, Martha Chamallas & Verna L. Williams, eds., 2022 forthcoming).
[6] HANNA FENICHEL PITKIN, THE CONCEPT OF REPRESENTATION (1967).
[7] Ishila Aggarwal, What is Purple Washing? How Does it Show the Double Standards of the Perpetrator? ONEWORLDNEWS.COM (Feb. 4, 2021), https://www.oneworldnews.com/what-is-purple-washing/.
[8] Debra Cassens Weiss, Why Amy Coney Barrett Got a ‘Well Qualified’ Rating from ABA Standing Committee, ABA JOURNAL (Oct. 15, 2020),https://www.abajournal.com/news/article/why-amy-coney-barrett-got-a-well-qualified-rating-from-aba-standing-committee.
[9] In the event, Collins voted against and Murkowski for confirmation.
[10] Elana Lyn Gross, Poll: 51% of Voters Support Amy Coney Barrett’s Confirmation, FORBES (Oct. 20, 2020),https://www.forbes.com/sites/elanagross/2020/10/20/poll-51-of-voters-support-amy-coney-barretts-confirmation/?sh=6d20f29c4724.
[11] Anne Gearan, Seung Min Kim and Josh Dawsey, Trump Announces Judge Amy Coney Barrett Is His Pick for the Supreme Court,Wash. Post(Sep. 26, 2020), https://www.washingtonpost.com/politics/trump-barrett-supreme-court/2020/09/26/4a417d60-000e-11eb-b555-4d71a9254f4b_story.html.
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