Constitutions are not neutral with respect to sex, gender or sexuality. The modern constitutional project is defined, rather, by a specific gender order: one premised on patriarchal and heteronormative gender roles as intrinsic to the political system it configures. Feminist constitutional law scholarship has confirmed this line of analysis, especially since the late twentieth century. In fact, such scholarship has demonstrated that to overcome deep gender bias entrenched in the practice and discipline of constitutional law, it is insufficient merely to add women and sexual and gender diverse people (SGDP) to the domain of constitutional subjectivity, for instance by expanding their rights. Rather, for constitutional law to become a transformative tool in the struggle for gender justice a more radical approach is necessary. The resulting work on gender constitutionalism has included an analysis of central concepts and assumptions underlying mainstream constitutional theories and a systematisation of evolving trends, but also of persistent textual and doctrinal differences. It has required the identification of ‘opportunity structures’ as crafted by constitutional moments and constitutional instruments, and as compared to other emancipatory venues. Ultimately, it has demanded forming strategic alliances and repositories of inspiration to render constitutional texts gender-responsive, as well as reflective of international best practice and transnational social movements for gender equality.

Published online: 29 January 2024