This is the sixth essay in a special eight-part series on Feminist Constitutionalism, organized by Melina Girardi Fachin, as part of the project ‘Transforming Judicial Outcomes for Women in Canada and Brazil,’ which is funded by the Social Sciences and Humanities Research Council of Canada (SSHRC). For more information about Feminist Constitutionalism, please contact Melina Girardi Fachin via email at melinafachin@gmail.com.
—Christine Peter, Professor of Constitutional Law, Brazil
The statement that “Nothing about us, without us” is not just a catchphrase in the feminist struggle. It must be said out loud! The establishment and validation of the category ‘woman’, both as a subject of fundamental rights and so as a social category, is a process that needs to be constructed and reconstructed every day, in our feminist academic movement.
It is urgent to move the woman from the passive place of subjection, to the position of a citizen, whose rights are equal of everybody else. The category ‘woman’ must be recognized by a double vision: a subjective one, women as subject of fundamental rights; and, in a second perspective, as a social category, which can be used to engage in the collective construction of the what it means to be a woman in each community.
Hermeneutics is an expression that designates the care that the subject has with himself to understand the world, from the perspective fo conscience and respect for her own self. Thus, feminist constitutional hermeneutics presupposes that each woman can express herself as a human being endowed with fundamental rights and duties from her own and inseparable place of speech.
The methodological proposal of Feminist Constitutionalism is to reposition women as subjects of fundamental rights in the context of the democratic rule of law. The investigation about the jurisprudence of the Brazilian Supreme Court, in the last three decades, goes through the consideration of this category ‘woman as subject of fundamental rights’.
The expression ‘woman’ in the database of precedents of the Federal Supreme Court returns more than 10,000 (ten thousand) results. Applying the first filter, that is decisions taken by the Full Court, the search system returns more than 1,000 (one thousand) collegiate decisions.
The research that will be related here proposes a timeline of the jurisprudential construction of the category woman as a subject of fundamental rights in the precedents of the Brazilian Supreme Court in the last three decades. Each decade to be analyzed was filtered by judgment date, from January 1st of the year zero to December 31st of the year nine. Thus, the results were: 20 (twenty) of the 1990s; 21 (twenty one) of the first decade of the 21st century; and 53 (fifty three) from the 2010s.
In 1990s, 20 (twenty) results indicates that the 1988 Constitution clearly established the status of subject of fundamental rights for Brazilian women. The struggle of the 26 (twenty six) constituents literally brought the expression ‘woman’ more than 20 times to the constitutional text, recognizing rights and establishing a legal status of gender equality in the Brazilian constitutional order (see article 5, I, of the CRFB).
Of these 20 (twenty) results, only 10 (ten) do not address women as subjects of fundamental rights. But the other half of the results are 4 (four) decisions that still treat the woman as a ‘married woman’. The other decisions 6 (six) are about discrimination against women in labor relations; special retirement for female teachers and voluntary retirement for women with 25 years of work; incidence of social security contribution on maternity salary; and trafficking in women x pimping. It is already possible to register that the last decade of the 20th century had some precedents in which women were considered as subjects with fundamental rights, which was certainly stimulated by the newly enacted constitutional norms in 1987-1988, in the previous decade.
In 2000s, 21 (twenty one) results show the similarity of results comparing to the 1990s. Of the 21 (twenty one) precedents, in 9 (nine) of them, the woman is just in the index and 12 (twelve) of them take care of women as subjects of fundamental rights. A third of the 12 (twelve) precedents, it means 4 (four) of them, the woman is referenced in view of her condition of ‘married woman’, discussing the rights related to this condition. But two-thirds discuss women’s fundamental rights, whether as workers, or to discuss sexual and reproductive rights, and even the condition of a woman provider for social security purposes. The most important precedent of that period discussed the right to research with embryonic stem cells, as well as the sexual freedom of women and the characterization of the crimes of rape and violent indecent assault against women as heinous crimes.
Finally, in 2010s, the research found 53 (fifty three) results, and approximately 50% of the decisions, are ones which women are treated as a just an index term. But its important to notice the increase from 21 (twenty one) to 53 (fifty three) results, what shows that the attention given by the Supreme Court of Brazil to women is remarkable.
Of the 53 (fifty three) precedents, 27 (twenty seven) deal with the fundamental rights of Brazilian women. The cases range from the fundamental rights of working women; of women insured by social security; of women candidates for political office; of women candidates for vacancies in the public service through public competition; of incarcerated women; the civil identity and social name of transgender women; of women as diffuse subjects of fundamental rights to respect and honor; of women victims of domestic violence; of homosexual women; and others. It was a quantitative and a qualitative advance of precedents that recognize fundamental rights of Brazilian women. There is still a long way to go, in search of a parity democracy in Brazil, but this last decade gives news that the future has already been installed and we cannot admit backlashes.
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