Feminism & Queer Theory

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Author: Verena Kahl/Tamsin Paige

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A. Overview/Introduction[edit | edit source]

I. Feminist and Queer Theory as Forms of Deconstruction[edit | edit source]

Feminist and queer approaches form part of a diverse field of schools of thought, some of which are presented in further detail in this textbook. These theories observe, analyze and criticize public international law from a particular perspective and, coming from this specific theoretical foundation, seek to deconstruct its object of analysis. Deconstruction[2] in this sense can be understood as a never ending process of questioning existing and accepted structures of dominance which are perceived as objective, neutral or natural.[3] As a result, it reveals the existence of other competing forms of interpretation, alternative views,[4] that have been ignored, overshadowed or suppressed,[5] thereby opening the door to new possibilities and structures.[6] The concept of deconstruction therefore rejects the idea of an absolute truth or natural referent,[7] but rather searches for 'the tensions, the contradictions, the heterogeneity.'[8] In its ability to show pluralities and different options, deconstruction creates space for (ongoing) transformation and reconstruction.[9] With this in mind, '[it] is only through this element of endless analysis, criticism and deconstruction that we can prevent existing structures of dominance from reasserting themselves.'[10] In this regard, feminist and queer theory aims at the deconstruction of a perceived neutral or natural international legal order that rests on a dominating masculine and heterosexual standard.[11]

II. The Male Standard[edit | edit source]

Although neither one nor 'the one' feminist and queer approach to international law exists, as shown below, all of these different approaches in the realm of feminist and queer theory share a common baseline: International law has been developed and shaped predominantly by men and has been built on the assumption that men and masculinity are the (societal) norm.[12] While this norm and, as a consequence, public international law, has largely been perceived as neutral,[13] it largely neglects all those categories that deviate from this standard. In this sense, it is not only women and femaleness which are excluded as 'the other'[14]. Rather, all deviations as regards to sex, gender or sexuality which are considered as different from or opposed to the norm[15] eke out a shadowy existence as their perspectives and interests are constantly ignored and bypassed. This includes, but is not reduced to persons defining/identifying themselves as women, lesbian, homosexual, bisexual, transgender or intersexual, thereby expanding categories of sex, gender and sexuality far beyond a mere binary understanding. In essence, public international law, just like domestic law, suffers from a clear gender bias,[16] some of whose manifestations are described further below. This gender bias of international law, elevating the masculine to the norm, functions like a 'veiled representation and projection of a masculine which takes itself as the unquestioned norm, the ideal representative without any idea of the violence that this representational positioning does to its others.'[17]

III. Commonalities of Feminist and Queer Theory[edit | edit source]

Since international law builds on a masculine and heterosexual standard that is confronted with a great diversity of deviations that are systematically overlooked, a joint presentation and consideration of feminist and queer approaches to international law is not only a legitimate and useful unification of perspectives in the de- and reconstruction of public international law. On the contrary/instead/rather, this holistic approach virtually imposes itself in view of common structural experiences of discrimination and injustice. Otherwise, the picture drawn by an analysis of public international law from either a feminist or a queer perspective would be left/remain incomplete. Using a holistic approach does also justice to the principle of intersectionality and may, at least to a certain extent, counteract an oversimplification of categories and distinguishing features, such as male/female or hetero-/homosexual, even if avoiding them completely may not always succeed.[18] In this sense, combining feminist and queer theory also means not to remain 'within the closed fields of these oppositions'[19] and thereby perpetuate the inherent hierarchy, but rather move beyond binary structures.

B. Common Terms and Concepts[edit | edit source]

I. Sex and Gender[edit | edit source]

Two main concepts which are deeply interrelated and essential to feminist and queer theory manifest themselves in a distinction drawn between 'sex' and 'gender'. The term 'sex', on the one hand, is regularly used to describe biological differences between men and women construed as binary categories related to bodies.[20] 'Gender', on the other hand, is often used as an opposite term in the way that it describes cultural and social imprinting of distinctions made on the basis of sex.[21] In this sense, the Human Rights Commission has contrasted both terms as follows: 'The term "gender" refers to the ways in which roles, attitudes, values and relationships regarding women and men are constructed by all societies all over the world. Therefore, while the sex of a person is determined by nature, the gender of that person is socially constructed.'[22] With this in mind, the notion of 'gender' has been described as a fluid and unstable concept[23] and is often understood as a rejection of the biological determinism embodied in the concept of 'sex',[24] which carries an 'excess cultural baggage'[25]. It is also used to relativize and break down the dichotomy and binary associated with the (biological) sex and thus to open it up to categories that go beyond woman and man, male and female.[26] Gender identity is therefore much more complex due to the 'dynamic relationship between the body and identity which gives rise to multiple possible alignments, which can change over time, or even from moment to moment.'[27]

Despite this intention to show a more inclusive and diverse picture beyond traditional understandings of masculinity and femininity[28] and the presumed neutrality and objectiveness attributed to the term 'gender',[29] it has been and still is frequently used as a synonym for women.[30] Gender-based analyses have therefore to a large extent focussed primarily on women as a seemingly stable (biological) category, thereby neglecting gender discrimination suffered by the many other forms of gender identity.[31] As a consequence, feminist approaches have long revolved around women as their coherent subject which presumes a common, collective and universal identity.[32] Feminist scholarship has thus neglected in large parts 'how the category of "women", the subject of feminism, is produced and restrained by the very structures of power through which emancipation is sought'.[33] This one-dimensional picture of identity that suggests a universal experience of discrimination and oppression has further led to ignoring the intersection of gender with other modalities of socially and culturally constructed identities, linked to notions such as 'class', 'race', 'sexuality' or 'ethnicity'.[34] However, there have also been attempts to deconstruct the category of 'women' in order to 'better reflect the racial, cultural, religious and other forms of diversity, troubling the category of women, and concomitantly, the concept of gender from within'[35] and - in a step further - to rethink the underlying categories and concepts.[36] Still, Brenda Cossman concluded that 'the troubling of sex and gender, and crisis of categories [...] has not yet permeated feminist international law scholarship, let alone international law. [...] Indeed, as gender comes to be instantiated at the international level, its meaning has become rather more rigid and fixed.'

Furthermore, the idea that 'sex' is a natural and immutable characteristic has been increasingly challenged,[37] for having constructed, contingent and political dimensions.[38] Jane Flax has therefore warned that the distinction and separation between 'sex' and 'gender' 'rested upon problematic and culture-specific oppositions, for example, the one between "nature" and "culture" or "body" and "mind"', obscuring the possibility that 'our concepts of biology/nature are rooted in social relations.'[39]

In this spirit, attempts have been made within queer and feminist approaches to denaturalize both sex and gender, assuming that categories of sex and gender do not exist prior to normative discourse and regulation, which is why they 'should both be understood as the effects of performative and reiterative gender norms [...] which materialise, naturalise, regulate, and discipline sexed bodies and identifications.'[40] It follows that the wording itself creates identity. Put in the words of Judith Butler, ‘[t]here is no gender identity behind the expressions of gender; that identity is performatively constituted by the very “expressions” that are said to be its result.’[41]

II. Feminist and Queer Theory[edit | edit source]

1. Feminism and Feminist Theory[edit | edit source]

Feminists mostly agree that there is no unified or homogenous discourse in feminist theory and that the feminist movement is comprised of diverse views and voices.[42] Although the feminist discourse is shaped by multiple controversies and disagreement, feminist theory is generally built on a common methodological baseline as it seeks to describe, analyze, explain and change gendered power relations in all spheres of life.[43] In this sense, 'feminism is a mode of analysis, a method of approaching life and politics, a way of asking questions and searching for answers, rather than a set of political conclusions about the oppression of women.'[44] Through the study of gender, gaining 'critical distance on existing gender arrangements' becomes possible and creates space for reassessment and alteration.[45] Feminism challenges gendered power relations, particularly those that 'favor men and masculinity over and above women and femininity',[46] in order to achieve human liberty for men, women and beyond.[47] Miriam Schneir therefore described feminism as 'one of the basic movements for human liberty'.[48] However, as has been described above, visible feminism and feminist theory have for a long time ignored the diversity and intersectionality of discrimination experiences suffered by women worldwide and got itself trapped in the binary dichotomy of male and female, men and women, thereby ignoring the plurality of gender identities and corresponding experiences of discrimination. Nevertheless, it seems that nowadays many if not most feminists seek to embrace the diversity of voices in the feminist discourse, which they consider as essential 'to capture the reality of women's experience [and] gender inequality.'[49] As a consequence, Sandra Harding asks feminists to give up 'the goal of telling "one true story"', but instead embrace 'the permanent partiality of feminist inquiry'.[50] Thereby feminists could 'seek a political and epistemological solidarity in our oppositions to the fiction of the naturalized, essentialized, uniquely "human" and to the distortions, perversions, exploitations, and subjugations perpetrated on behalf of this fiction.'[50]

2. Feminist Approaches to International Law[edit | edit source]

With regard to international law, feminist approaches use feminist theory as a tool for critical analysis in order 'to show how the structures, processes, and methodologies of international law marginalize women by failing to take account of their lives or experiences.'[51] In this sense, feminist approaches to international law seek to lift the veil of an international legal order perceived as neutral and objective and make visible its underlying and omnipresent male standard constructed as the 'norm' and the 'normal' which results in a power imbalance and hierarchy between men and women and materializes in the silence of international law regarding women's experiences and interests.[52] They therefore continue to demonstrate that international law is a 'thoroughly gendered system'.[53] According to Charlesworth and Chinkin, feminist analyses of international law fulfill two main tasks: On the one side, feminist approaches aim at the deconstruction of the values upon which the international legal system is constructed and thereby challenge their claim to rationality and objectivity.[54] On the other side, feminist approaches seek to reconstruct international law in a sense that it rebuilds 'the basic concepts of international law in a way that they do not support or reinforce the domination of women by men.'

3. Queerness and Queer Theory[edit | edit source]

Queerness, as a term has a complex history that centres around positioning as outsiders those who don’t conform to norms and expectations of society. This led to it being a pejorative term to describe people who didn’t appropriately perform heterosexuality.[55] Consequently, the term queer has been reclaimed by the QUILTBAG+ community (Queer, Unsure, Intersex, Lesbian, Trans*, Bisexual, Asexual/Aromantic/Agender, Gay, plus others outside these categories and heteronormative classification) as both a generalised shorthand for the community at large and an individualised identity for those within the community who do not feel comfortable with the constraints of more specific identity descriptors.[56] In this way, queer acts as a generalised or collective (descriptive) noun, but also an individualised (identity) noun. This becomes more complex linguistically when considering that queer also operates as a verb, in that ‘queering’ is an action that can be taken that is underpinned by a questioning and interrogation of underlying (heteronormative) assumptions that underpinned and normative approach to the thing that is being queered.[57] Technically, queer can also be used as an adjective; however, as the adjective use of queer is irreversibly tied to the use of queer as a pejorative this use of the word has rightly fallen out of common vernacular. While queer theory often has a focus upon queer subjects (then noun form of queer), queer theory itself is predominantly focused at a form or method level with the verb approach to queer.

4. Queer Approaches to International Law[edit | edit source]

In general, queer approaches to international law seek to include experiences and identities into the international legal discourse and the normative framework that are distinct from the heterosexual standard, particularly illustrated in the granting of equal rights and prohibition of discrimination on the basis of sexuality and sexual identity.[58] In addition, Dianne Otto understands 'queering of international law' more broadly than traditional approaches of norm inclusion.[59] In this sense, queer theory fundamentally challenges and criticizes the regime of what is considered as 'normal' with regard to human sexuality, thereby moving beyond the dominant dualism of heterosexuality and homosex.[60] In the words of Otto, queer theory to international law is '"taking a break" from the politics of hetero-normative injury, and imagines human sexuality as much more diverse and shifting.'[61] While feminist theory has put a spotlight on the notion of 'gender' in international law and thereby uncovered and exposed norms and standards underlying the international legal order which were formerly perceived as neutral, but which build upon inherent hierarchies that create power imbalances and result in (structural) discrimination, quite similarly queer theory makes 'visible the [hetero] sexual ordering that is taken for granted as an underpinning of the "normal" system of international law' and discloses heterosexuality as the 'basic model for all dominant systems of societal relations.'[62]

5. Frictions and Intersections of Feminist and Queer Theory to International Law[edit | edit source]

As outlined above, there is much to be said for a joint presentation of feminist and queer approaches to international law. Especially in light of the open, fluid concept of gender and the need to break down and overcome the heteronormative binary of both sex and gender, a critical analysis of international law from a one-sided feminist or queer perspective would remain patchy and incomplete. However, this is less about adding up different perspectives, but about choosing an integrative approach that attempts to map the complexity of situations and experiences of discrimination and to develop adequate methods that go beyond describing a specific problem/issue, but respond to it by exploring possible solutions.[63] Still, constructive dialogues between feminist and queer theory have rather been the exception than the rule, which is - according to Gina Heathcote - also due to the fact that 'mainstream feminist approaches to international law are yet to incorporate queer and trans scholarship into feminist accounts'[64] and have mostly ignored the dialogue commenced by queer approaches to international law.[65] Instead, feminist approaches have - intentionally or unintentionally, for pragmatic or other reasons[66] - largely built on the heteronormativity and cisgenderism inherent in the structures which they seek to criticize, resulting in the 'invisibility of individuals who do not neatly fit into the normalized gender binary' and reproducing the 'fear of undermining heteronormative social structures.'[67] In contrast, moving beyond dualism and asymmetry would allow 'to tell a story of marginality that has not yet been told’,[68] drawing an inclusive picture of discriminatory experiences without 'losing the precarious spaces that have been carved out for addressing women’s human rights abuses.'[69]


Include info-box with regard to cisgender:

The notion of 'cisgender' refers to persons who feel that their assigned sex at birth conforms with the gender they feel themselves to be.[70] Cisgender is often used as an opposite to the term 'transgender'[71] and is regularly tied to the binary system of biologically anchored categories of women/men and female/male.[72]

III. Structural Discrimination[edit | edit source]

During the last two decades, international human rights institutions have increasingly made reference to the phenomenon/concept of structural discrimination.[73] Structural discrimination is distinct from individual discrimination which refers to the behavior of an individual belonging to a specific group that is intended to have differential and/or harmful effects on the members of another group.[74] Typically, the differential and/or harmful behavior stems from individuals belonging to the dominant group that represents (or perceives itself as) the majority and is directed against individuals that due to specific characteristics are considered as minority or distinct which has also been described above as 'the other'.

In contrast to individual discrimination, structural discrimination refers to discrimination rooted in grown and therefore pre-existing structures and inequalities of society.[75] It occurs when the rules, norms and policies of a society's major(ity) institutions impose and produce disproportionately disadvantageous and unjust outcomes for the members of certain salient social groups.[76] Discrimination is thereby introduced/integrated into often unconscious societal routines and patterns of attitudes and behavior that create and maintain discriminatory practice .[77] The applied rules, norms and policies as well as societal routines and patterns are largely perceived as neutral, because their negative outcome - the differential and/or harmful effect on certain groups - is usually not intended.[78] As Pincus highlights the 'key element in structural discrimination is not the intent but the effect of keeping minority groups in a subordinate position.'[79] In this sense, members of a certain group that due to the application of these rules and policies are denied equal opportunities and suffer from unjust disadvantages are put in a vulnerable position exposing them to exploitation and domination.[80] In the context of gender inequality, MacKinnon has described structural discrimination as 'the systematic relegation of an entire group of people to a condition of inferiority.'[81]

Although structural and institutional discrimination may sometimes be used synonymously, Pincus described their differences as follows: Both forms of discrimination share the effect of certain groups being kept subordinate, "but only institutional discrimination is intended to keep minority groups subordinate."[82] While structural discrimination as a phenomenon can therefore generally be described as indirect and unintended, it may still be built upon or accompanied by forms of direct and intentional discrimination.[83] It is also important to point out that women are much affected by structural and institutional discrimination as other groups even though they do not fit into the category of minority.

IV. Intersectionality[edit | edit source]

It was Kimberlé Crenshaw who first described and introduced the concept of intersectionality into feminist theory. Her work 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' can be read as a critique of both feminist and anti-racist movements for their one-sided focus on the most privileged members of the group.[84] According to Crenshaw, the 'single-axis analysis' results in anti-racist strategies that tend to focus on gender privileged persons - men - and a women's movement which puts a spotlight on class-privileged women associated with a certain race, namely white, middle- and upper-class women.[85] This blindness towards other groups that suffer from structural discrimination, particularly at the intersection of different categories upon which subordination and discrimination is based, leads to the marginalization of 'those who are multiply burdened and obscures claims that cannot be understood as resulting from discrete sources of discrimination.'[86]

As a consequence, an intersectional approach as applied by Crenshaw has more generally been understood as the 'idea that when it comes to thinking about how inequalities persist, categories like gender, race, and class are best understood as overlapping and mutually constitutive rather than isolated and distinct.'[87] Building upon this, intersectionality has been commonly defined as 'the complex, cumulative way in which the effects of multiple forms of discrimination [...] combine, overlap, or intersect especially in the experiences of marginalized individuals or groups.'[88] Consequently, intersectional approaches of feminist and queer theory seek to include perspectives and experiences of individuals and groups where several forms of discrimination based on different categories, such as gender, sexual orientation, class, age or disability, just to name a few, overlap.




C. Problems that Feminist and Queer Theory Seeks to Address[edit | edit source]

Broadly speaking, feminism and queer theory seek to address the same problem: equality within society. This goal is one that is shared with most marginalised-peoples-focused theories within law, social sciences, and the humanities. The key differences here (and elsewhere) are which marginalised group is the focus in its quest for equality, and how this quest for equality is positioned strategically and tactically.

There is a valid argument to suggest that the drafting and entry into force of the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) in 1979 and 1981 respectively is the starting point of feminist approaches to international law;[89] however, academic scholarship from the feminist tradition didn’t gain traction until a decade later. The consideration of international law as an area of concern for feminism began in earnest in 1991 with the foundational article ‘Feminist Approaches to International Law’ by Charlesworth, Chinkin, and Wright.[90] While this began at the same time as what is seen as third wave feminism (most distinctively characterised by the work of Butler and incorporating intersectionality following Kimberlé Crenshaw’s work),[91] the approach taken was shaped by the education in second wave feminism of the academics championing this important moment in International Law. This approach to seeking equality being grounded in the framework of second wave feminism can be seen in how CEDAW has been constructed and in how Charlesworth et al. construct the goal of feminism as being “to capture the reality of women’s experience or gender inequality.”[92]

This tendency of the feminist tradition in international law to follow second wave feminism, which is much more grounded in biological determinism than third wave feminism, is most evident in the way we see the UN’s gender mainstreaming programs (which seek to normalise considerations of the perspectives and impacts of women in UN activities).[93] It is also evident in fantastic programs such as the Gender Legislative Index,[94] which seeks to assess how well states domestic laws are complying with CEDAW obligations. In this construction the object of feminist interventions and international law is grounded in cisgender women being the subject of arguments for equality.

The outcome of this focus of women is the subject matter of feminist interventions and international law lends itself to two separate approaches. The first, and arguably more common approach (and definitely more theoretically sound approach), is one that embraces Crenshaw’s call for intersectionality in its analysis.[95] This is a feminism that acknowledges, and embraces, the fact that women’s lived experiences of the impacts of law is not universal and is also shaped by other defining characteristics of marginalisation (such as inter-alia race, class, sexuality, and disability).[96] While this feminism is still predominantly focused upon equality for women, it acknowledges that women’s equality is contingent upon equality for all marginalised groups and the need for feminism to engage in dialogue with these groups. The other approach, often dubbed ‘White Woman Feminism’, embraces the call spearheaded by Catherine MacKinnon that women need to be considered a single unified and universal political category that disregards questions of race, class, et cetera when advocating for equality.[97] Proponents of this approach believe that it creates a stronger argument for women’s equality, but ignore that the focus of the approach is often the interests of white, straight, western women. This second approach has also been played by notion of zero-sum games around the question of equality and has pushed back against a broad and inclusive feminism that seeks to advocate for equality for all out of fear that it will come at the expense of equality gains made for women.[98]

Some of the notable achievements of feminist interventions into international law were how advocacy was able to get International Criminal Law and international humanitarian law to treat armed conflict sexual violence as a crime against the personhood of the victim, rather than as a crime against military discipline (as it had historically been treated).[99] Building upon this success in the 90s we have seen the development of the UN Security Council’s Women, Peace, and Security agenda and the growth in the work of UN Women as a sub agency of the UN to specifically consider the impact of international law on the lives of women.[100] Some of the impacts around how women have been characterised, and often essentialised, through the work of engaging in direct consideration of the impact of international law on women has been strongly criticised;[101] however, even those criticising this work acknowledge that it’s an improvement for women than when they were being utterly ignored.

Queer theory grew out of third wave feminism, in particular the work of Butler and Sedgwick,[102] with a much less cohesive equality agenda than feminism. When looking at questions of equality queer theory is inherently broad (and is mostly inclusive but not without its problems) but has a tendency to focus upon QUILTBAG+ subjects.[103] There is also a strong tendency to explore advocating for equality through an intersectional lens by examining the normative assumptions that are being brought to law and situations that generate inequality. Queer theory, at its core, is an embrace of curiosity and questioning – generally from a framework of understanding that the law and normative assumptions that are brought to law and social practice are culturally dependent social constructions rather than natural and inevitable.[104]

The easiest space to see this distinction between feminist approaches to international law and queer theory approaches to international law is in examination of the project of gender mainstreaming within UN projects. Feminist approaches to international law, while often critical of the details taken through gender mainstreaming, have treated this introduction of idea and process into every UN body (and numerous state foreign affairs and defence departments) as a net good. Queer theory approaches to international law, while acknowledging the improvements that adding gender mainstreaming has produced, have heavily critiqued how the process of gender mainstreaming has led to the use of gender being a euphemism for women, how it has normalised and reinforced the (white) cis/het masculine subject as the un-gendered normal to which all other expressions of humanity must be compared, and how the process has reproduced bio essentialist views of sex and gender along regressive heteronormative lines within international legal discourse.

There is a tension created within feminist and queer theory approaches to international law where the perfect can be the enemy of the good. This tension is often referred to as the ‘double-bind’.[105] This idea of the ‘double-bind’ broadly posits that advocates for change and equality suffer pressures from those outside governmental institution to not compromise in questions of equality, while also suffering pressures from within the institution that require accepting an improvement that is less than ideal in the alternative to no improvement. It is because of these competing pressures that feminism and queer theory requires advocates inside governmental institutions to push for change and accept compromise, and advocates outside of governmental institutions to hold those inside the institutions to account and drive them to continue advocating for better equality.

Overall feminism and queer theory seek the same thing: equality. This is achieved better by marginalised groups working together for the betterment of all, and that is something that is known and acknowledged by the majority of feminist and queer theory advocates in international law.

D. Key People in Feminist and Queer Theory in International Law[edit | edit source]

These are some of the important figures in feminist and queer theory in international law, although this list does by no means claim to be exhaustive.


·       Hilary Charlesworth

·       Christine Chinkin

·       Shelley Wright

·       Ratna Kapur

·       Rahul Rao

·       Aeyal Gross

·       Dianne Otto

·       Gina Heathcote

·       Nan Seuffert

·       Doris Buss

·       Ralph Wilde

·       Vanja Hamzić

·       Anne Orford

·       Nienke Grossman

·       Josephine Jarpa Dawuni

·       Senthorun Raj

Further Readings[edit | edit source]

  • Source I
  • Source II

Conclusion[edit | edit source]

  • Summary I
  • Summary II

Table of Contents[edit source]

Back to home page

Part I - History, Theory, and Methods

Part II - General International Law

Part III - Specialized Fields

Footnotes[edit source]

  1. The first footnote. Please adhere to OSCOLA when formating citations. Whenever possible, provide a link with the citation, ideally to an open-access source.
  2. For Derrida's idea of deconstruction see, inter alia, Jacques Derrida, Of Grammatology (Gayatri Chakravorty Spivak tr, Johns Hopkins University Press 2016); Jacques Derrida, Deconstruction in a Nutshell: A Conversation with Jacques Derrida (John D. Caputo ed, Fordham University Press 2020). For an analysis of deconstruction with regard to law and justice see Jacques Derrida, 'Force of Law: The "Mystical Foundation of Authority"' in Drusilla Cornell, Michel Rosenfeld and David Carlson (eds), Deconstruction and the Possibility of Justice (Routledge 1992) 3-677.
  3. See Catherine Turner, 'Jacques Derrida: Deconstruction' (2016) CLT <https://criticallegalthinking.com/2016/05/27/jacques-derrida-deconstruction/> accessed 6 August 2022.
  4. See Derrida's concept of "différance" in Jacques Derrida, Jacques Derrida (Geoffrey Bennington tr, University of Chicago Press 1993) 70 et seqq.
  5. See Catherine Turner, 'Jacques Derrida: Deconstruction' (2016) CLT <https://criticallegalthinking.com/2016/05/27/jacques-derrida-deconstruction/> accessed 6 August 2022. Derrida's concept of "différance" is described in Jacques Derrida, Jacques Derrida (Geoffrey Bennington tr, University of Chicago Press 1993) 70 et seqq.
  6. See Catherine Turner, 'Jacques Derrida: Deconstruction' (2016) CLT <https://criticallegalthinking.com/2016/05/27/jacques-derrida-deconstruction/> accessed 6 August 2022.
  7. In philosophical terms, Derrida referred to the absence of a "transcendental signified", because "every signifier refers to other signifiers, we never reach a signified referring only to itself." Jacques Derrida, Jacques Derrida (Geoffrey Bennington tr, University of Chicago Press 1993) 78 et seq. See Catherine Turner, 'Jacques Derrida: Deconstruction' (2016) CLT <https://criticallegalthinking.com/2016/05/27/jacques-derrida-deconstruction/> accessed 6 August 2022.
  8. Jacques Derrida, Deconstruction in a Nutshell: A Conversation with Jacques Derrida (John D. Caputo ed, Fordham University Press 2020) 9.
  9. With regard to "critical legal studies" and other legal works dedicated at deconstruction, Derrida stated that "they respond [...] to the most radical programs of deconstruction that would like, to be consistent in itself, not to remain enclosed in purely speculative, theoretical, academic discourses, but rather [...] to aspire to something more consequential, to change things and to intervene in an efficient and responsible [...] way, [...] in the sense of maximum intensification of transformation in progress, in the name of neither a simpler symptom nor a simple cause." Jacques Derrida, 'Force of Law: The "Mystical Foundation of Authority"' in Drusilla Cornell, Michel Rosenfeld and David Carlson (eds), Deconstruction and the Possibility of Justice (Routledge 1992) 8 et seq.
  10. Catherine Turner, 'Jacques Derrida: Deconstruction' (2016) CLT <https://criticallegalthinking.com/2016/05/27/jacques-derrida-deconstruction/> accessed 6 August 2022. In this regard, Derrida stated that he tries "to dismantle not institutions, but some structures within institutions that have become too rigid, or are dogmatic or which work as an obstacle to future research." Jacques Derrida, Deconstruction in a Nutshell: A Conversation with Jacques Derrida (John D. Caputo ed, Fordham University Press 2020) 8.
  11. Charlesworth and Chinkin have described this first task as the "deconstruction of the explicit and implicit values of the international legal system, challenging their claim to objectivity and rationality because of the limited base on which they are built." Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 60.
  12. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) ix, 2.
  13. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) x.
  14. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 2.
  15. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 2, 58.
  16. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) ix.
  17. Elizabeth Gross, 'Conclusion: What is feminist theory?' in Carole Pateman and Elizabeth Gross (eds), Feminist Challenges: Social and Political Theory (Allen & Unwin Australia 1986) 197.
  18. In this context, Otto has pointed both to the necessity and dangers of using categories: "To start with, we need to acknowledge that categorical thinking enables us to communicate and to act. Without classifications and comparisons, we are left with a world of infinite sui generis items and without a basis for making judgments of justice, ethics, or rights. Yet categories also always exclude other possibilities by obscuring the multiple strands that make up the whole and the ways in which the strands interrelate. " Dianne Otto, 'Rethinking the Universality of Human Rights Laws' (1997) 29 Columbia Human Rights Law Review 1, 27 et seq. with further reference.
  19. Jacques Derrida, Positions (University of Chicago Press 1981) 41.
  20. See
  21. See Joan W. Scott, 'Gender: A Useful Category for Historical Analysis' (1986) 91 The American Historical Review 1053, 1053 et seq.
  22. Commission on Human Rights, Report of the Expert Group Meeting on the Development of Guidelines for the Integration of Gender Perspectives into United Nations Human Rights Activities and Programmes, 20 November 1995, UN Doc. E/CN.4/1996/105, para. 13.
  23. See Gina Heathcote, Feminist Dialogues on International Law: Success, Tensions, Futures (Oxford University Press 2019) 3.
  24. See Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299, 300; Joan W. Scott, 'Gender: A Useful Category for Historical Analysis' (1986) 91 The American Historical Review 1053, 1054.
  25. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 3.
  26. See Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299, 300 et seq.
  27. Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299, 300.
  28. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 3.
  29. Cf. Joan W. Scott, 'Gender: A Useful Category for Historical Analysis' (1986) 91 The American Historical Review 1053, 1056.
  30. Cf. Joan W. Scott, 'Gender: A Useful Category for Historical Analysis' (1986) 91 The American Historical Review 1053, 1056.
  31. See Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299, 300.
  32. See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990) 1-6.
  33. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990) 2.
  34. Cf. See Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990) 3.
  35. Brenda Cossman, 'Gender Performance, Sexual Subjects and International Law' (2002) 15 Canadian Journal of Law and Jurisprudence 281, 287.
  36. Cf. Brenda Cossman, 'Gender Performance, Sexual Subjects and International Law' (2002) 15 Canadian Journal of Law and Jurisprudence 281, 287.
  37. See particularly Margaret Davies, 'Taking the Inside Out: Sex and Gender in the Legal Subject' in Ngaire Naffine and Rosemary J. Owens (eds), Sexing the Subject of Law (LBC Information Service 1997) 25.
  38. Cf. Margaret Davies, 'Taking the Inside Out: Sex and Gender in the Legal Subject' in Ngaire Naffine and Rosemary J. Owens (eds), Sexing the Subject of Law (LBC Information Service 1997) 25. See also Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 4.
  39. Jane Flax, 'Postmodernism and Gender Relations in Feminist Theory' (1987) 12 Signs 621, 635 et seq.
  40. Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299, 300 et seq.
  41. Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990) 25.
  42. See, inter alia, Nancy Hartsock, 'Feminist Theory and the Development of Revolutionary Strategy' in Zillah R. Eisenstein (ed), Capitalist Patriarchy and the Case for Socialist Feminism (Monthly Review Press 1979) 56, 58; Hilary Charlesworth, Christine Chinkin and Shelley Wright, 'Feminist Approaches to International Law' (1991) 85 The American Journal of International Law 613; Jane Flax, 'Postmodernism and Gender Relations in Feminist Theory' (1987) 12 Signs 621, 622.
  43. Cf. Alison Blunt and Jane Wills, Dissident Geographies: An introduction to radical ideas and practice (Pearson Education Limited 2000) 90. See also Jane Flax, 'Postmodernism and Gender Relations in Feminist Theory' (1987) 12 Signs 621, 622.
  44. Nancy Hartsock, 'Feminist Theory and the Development of Revolutionary Strategy' in Zillah R. Eisenstein (ed), Capitalist Patriarchy and the Case for Socialist Feminism (Monthly Review Press 1979) 56, 58 et seq.
  45. Cf. Jane Flax, 'Postmodernism and Gender Relations in Feminist Theory' (1987) 12 Signs 621, 623.
  46. Alison Blunt and Jane Wills, Dissident Geographies: An introduction to radical ideas and practice (Pearson Education Limited 2000) 90.
  47. Cf. Alison Blunt and Jane Wills, Dissident Geographies: An introduction to radical ideas and practice (Pearson Education Limited 2000) 90. See also Charlesworth and Chinkin who affirmed that 'such a reconstruction would not be limited to women.' Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 61.
  48. Miriam Schneir, The Vintage Book of Historical Feminism (Vintage 1996) xi.
  49. Hilary Charlesworth, Christine Chinkin and Shelley Wright, 'Feminist Approaches to International Law' (1991) 85 The American Journal of International Law 613.
  50. a b Sandra Harding, The Science Question in Feminism (Cornell University Press 1986) 193.
  51. Christine Chinkin, 'Feminism, Approach to International Law' (Max Planck Encyclopedias of International Law, October 2010) [1] <https://opil.ouplaw.com/view/10.1093/law:epil/9780199231690/law-9780199231690-e701> accessed 9 August 2022.
  52. See generally Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 60.
  53. Hilary Charlesworth, Christine Chinkin and Shelley Wright, 'Feminist Approaches to International Law' (1991) 85 The American Journal of International Law 613, 615.
  54. Cf. Hilary Charlesworth and Christine Chinkin, The boundaries of international law - A feminist analysis (Manchester University Press 2000) 60.
  55. Annamarie Jagose, Queer Theory: An Introduction. (Melbourne University Publishing 2013) 9.
  56. ibid; Wayne Morgan, ‘Queer Law: Identity, Culture, Diversity, Law’ (1995) 5 Australasian Gay and Lesbian Law Journal 1, 5; Gabrielle Simm, ‘Queering CEDAW? Sexual Orientation, Gender Identity and Expression and Sex Characteristics (SOGIESC) in International Human Rights Law’ (2020) 29 Griffith Law Review 374, 376.
  57. Gabrielle Simm, ‘Queering CEDAW? Sexual Orientation, Gender Identity and Expression and Sex Characteristics (SOGIESC) in International Human Rights Law’ (2020) 29 Griffith Law Review 374, 376.
  58. See Diane Otto, '"Taking a Break" from "Normal": Thinking Queer in the Context of International Law' (2007) 101 Proceedings of the ASIL Annual Meeting 119, 119 et seq.
  59. See Diane Otto, “‘Taking a Break’ from ‘Normal’: Thinking Queer in the Context of International Law” (2007) 101 Proceedings of the ASIL Annual Meeting 119, 120; Dianne Otto, ‘Introduction: Embracing queer curiosity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 1.
  60. Cf. Diane Otto, '"Taking a Break" from "Normal": Thinking Queer in the Context of International Law' (2007) 101 Proceedings of the ASIL Annual Meeting 119, 120.
  61. Diane Otto, '"Taking a Break" from "Normal": Thinking Queer in the Context of International Law' (2007) 101 Proceedings of the ASIL Annual Meeting 119, 120.
  62. Diane Otto, '"Taking a Break" from "Normal": Thinking Queer in the Context of International Law' (2007) 101 Proceedings of the ASIL Annual Meeting 119, 120.
  63. With regard to the different pace of developing feminist messages on the one side and feminist methods on the other see Hilary Charlesworth, Talking to ourselves? Feminist scholarship in international law, Feminist Perspectives on Contemporary International Law: Between Resistance and Compliance? (Hart Publishing 2011) 32; Gina Heathcote, Feminist Dialogues on International Law: Success, Tensions, Futures (Oxford University Press 2019) 4 et seqq.
  64. Gina Heathcote, Feminist Dialogues on International Law: Success, Tensions, Futures (Oxford University Press 2019) 21.
  65. Cf. Gina Heathcote, Feminist Dialogues on International Law: Success, Tensions, Futures (Oxford University Press 2019) 21.
  66. Different grounds for a reluctance of feminists to move beyond the traditional dichotomy of sex and gender are set out in Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299 (306).
  67. Tamsin Phillipa Paige, 'The Maintenance of International Peace and Security Heteronormativity' in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risks (Routledge 2018) 91, 107.
  68. Brenda Cossman, 'Gender Performance, Sexual Subjects and International Law' (2002) 15 Canadian Journal of Law and Jurisprudence 281 (289).
  69. Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299 (309).
  70. Cf. Paula Blank, 'Will “Cisgender” Survive?' (The Atlantic, 24 September 2014) <https://www.theatlantic.com/entertainment/archive/2014/09/cisgenders-linguistic-uphill-battle/380342/> accessed 9 August 2022.
  71. Cf. Paula Blank, 'Will “Cisgender” Survive?' (The Atlantic, 24 September 2014) <https://www.theatlantic.com/entertainment/archive/2014/09/cisgenders-linguistic-uphill-battle/380342/> accessed 9 August 2022.
  72. See Dianne Otto, 'Queering Gender [Identity] in International Law' (2015) 33 Nordic Journal of Human Rights 299, 300 n 3.
  73. See, inter alia, UN Economic and Social Council, Integration of the human rights of women and a gender perspective: violence against women, Report of the Special Rapporteur on violence against women, its causes and consequences, Yakin Ertürk, Mission to Mexico, 13 January 2006, UN Doc. E/CN.4/2006/61/Add.4, para. 13; IACtHR, Case of González et al. (“Cotton Field”) v. Mexico (Preliminary Objection, Merits, Reparations and Costs), Judgment, 16 November 2009, Series C No. 205, paras. 134, 450; Committee on the Elimination of Racial Discrimination, General Recommendation No. 34, Racial discrimination against people of African descent, 30 September 2011, UN Doc. CERD /C/GC/34, paras. 5-7; Committee on the Elimination of Discrimination against Women, General Recommendation No. 30 on women in conflict prevention, conflict and post-conflict situations, 18 October 2013, UN Doc. CEDAW/C/GC/30, paras. 77, 79.
  74. Cf. Fred L. Pincus, 'From Individual to Structural Discrimination' in Fred L. Pincus and Howard J. Ehrlich (eds), Race and Ethnic Conflict: Contending Views on Prejudice, Discrimination, and Ethnoviolence (Routledge, 2nd ed 2018) 120.
  75. See Elisabeth Veronika Henn, International Human Rights Law and Structural Discrimination: The Example of Violence against Women (Springer 2018) 1.
  76. Cf. Andrew Altman, 'Discrimination' (Standford Encyclopedia of Philosophy, first published 1 February 2011, last substantive revision 20 April 2020) <https://plato.stanford.edu/entries/discrimination/#OrgInsStrDis> accessed 9 August 2022. See also Fred L. Pincus, 'From Individual to Structural Discrimination' in Fred L. Pincus and Howard J. Ehrlich (eds), Race and Ethnic Conflict: Contending Views on Prejudice, Discrimination, and Ethnoviolence (Routledge, 2nd ed 2018) 122.
  77. See Mirjana Najcevska, ‘Structural Discrimination—Definition, Approaches and Trends’ (2010) 8th Session of the Intergovernmental Working Group on the Effective Implementation of the Durban Declaration and Programme of Action, held in Geneva from 11 to 22 October 2010, Executive Summary of Panelist's Presentation <https://www.ohchr.org/EN/Issues/Racism/IntergovWG/Pages/Session8.aspx> accessed 9 August 2022.
  78. See Fred L. Pincus, 'From Individual to Structural Discrimination' in Fred L. Pincus and Howard J. Ehrlich (eds), Race and Ethnic Conflict: Contending Views on Prejudice, Discrimination, and Ethnoviolence (Routledge, 2nd ed 2018) 122.
  79. Fred L. Pincus, 'From Individual to Structural Discrimination' in Fred L. Pincus and Howard J. Ehrlich (eds), Race and Ethnic Conflict: Contending Views on Prejudice, Discrimination, and Ethnoviolence (Routledge, 2nd ed 2018) 122.
  80. Cf. Andrew Altman, 'Discrimination' (Standford Encyclopedia of Philosophy, first published 1 February 2011, last substantive revision 20 April 2020) <https://plato.stanford.edu/entries/discrimination/#OrgInsStrDis> accessed 9 August 2022.
  81. Catherine A. McKinnon, Feminism Unmodified: Discourse on Life and Law (Harvard University Press 1987) 41.
  82. Fred L. Pincus, 'From Individual to Structural Discrimination' in Fred L. Pincus and Howard J. Ehrlich (eds), Race and Ethnic Conflict: Contending Views on Prejudice, Discrimination, and Ethnoviolence (Routledge, 2nd ed 2018) 122.
  83. See also for the at times complicated distinction of direct and indirect, intended and unintended discrimination: Andrew Altman, 'Discrimination' (Standford Encyclopedia of Philosophy, first published 1 February 2011, last substantive revision 20 April 2020) <https://plato.stanford.edu/entries/discrimination/#OrgInsStrDis> accessed 9 August 2022.
  84. See Kimberlé Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' [1989] University of Chicago Legal Forum 139, 140.
  85. See Kimberlé Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' [1989] University of Chicago Legal Forum 139, 140; Kimberlé Crenshaw, 'Mapping the Margins: Intersectionality, Identity Politics, and Violence against Women of Color' (1991) 43 Stanford Law Review 1241, 1252.
  86. Kimberlé Crenshaw, 'Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics' [1989] University of Chicago Legal Forum 139, 140.
  87. Adia Harvey Wingfield, 'About Those 79 Cents' (The Atlantic, 17 October 2016) <https://www.theatlantic.com/business/archive/2016/10/79-cents/504386/> accessed 9 August 2022. See also Adia Harvey Wingfield and Melinda Mills, 'Viewing Videos: Class Differences, Black Women, and Interpretations of Black Femininity' (2012) 19 Race, Gender & Class 348, 352.
  88. Merriam-Webster Dictionary, 'Intersectionality' <https://www.merriam-webster.com/dictionary/intersectionality> accessed 9 August 2022.
  89. Convention on the Elimination of All Forms of Discrimination against Women 1979 (1249 UNTS 13).
  90. Hilary Charlesworth, Christine Chinkin and Shelly Wright, ‘Feminist Approaches to International Law’ (1991) 85 American Journal of International Law 613.
  91. See generally: Judith Butler, Gender Trouble Feminism and the Subversion of Identity (Routledge 1999) <http://site.ebrary.com/id/10054731> accessed 30 July 2015; Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139.
  92. Hilary Charlesworth, Christine Chinkin and Shelley Wright, 'Feminist Approaches to International Law' (1991) 85 The American Journal of International Law 613.
  93. Tamsin Phillipa Paige and Joanne Stagg, ‘Well-Intentioned but Missing the Point: The Australian Defence Force Approach to Addressing Conflict-Based Sexual Violence’ (2020) 29 Griffith Law Review 468, 471–472.
  94. Ramona Vijeyarasa, ‘What Is Gender-Responsive Legislation? Using International Law to Establish Benchmarks for Labour, Reproductive Health and Tax Laws That Work for Women’ (2020) 29 Griffith Law Review 334.
  95. Kimberlé Crenshaw, ‘Demarginalizing the Intersection of Race and Sex: A Black Feminist Critique of Antidiscrimination Doctrine, Feminist Theory and Antiracist Politics’ [1989] University of Chicago Legal Forum 139.
  96. Gina Heathcote, Feminist Dialogues on International Law: Successes, Tensions, Futures (First edition, Oxford University Press 2019) 21.
  97. Catherine MacKinnon, ‘From Practice to Theory, or What Is a White Woman Anyway?’ (1991) 4 Yale Journal of Law and Feminism 13, 20–22.
  98. Dianne Otto, ‘Queering Gender [Identity] in International Law’ (2015) 33 Nordic Journal of Human Rights 299, 306–309.
  99. The Prosecutor v Jean-Paul Akayesu (Trial Judgement) [1998] International Criminal Tribunal for Rwanda ICTR-96-4-T; Prosecutor v Anto Furundžija (Appeals Chamber Judgement) [2000] International Criminal Tribunal for the Former Yugoslavia IT-95-17/1; Prosecutor v Zejnil Delalic, Zdravko Mucic (aka ‘Pavo’), Hazim Delic, and Esad Landzo (aka ‘Zenga’) (Appeals Chamber Judgement) [2001] International Criminal Tribunal for the Former Yugoslavia IT-96-21.
  100. Resolution 1325 (2000) 2000 (UN Security Council); Resolution 1820 (2008) 2008 (UN Security Council); Resolution 1888 (2009) 2009 (UN Security Council); Resolution 1889 (2009) 2009 (UN Security Council); Resolution 1960 (2010) 2010 (UN Security Council); Resolution 2106 (2013) 2013 (UN Security Council); Resolution 2122 (2013) 2013 (UN Security Council); Resolution 2242 (2015) 2015 (UN Security Council); Resolution 2467 (2019) 2019 (UN Security Council); Resolution 2493 (2019) 2019 (UN Security Council).
  101. Karen Engle, ‘The Grip of Sexual Violence: Reading UN Security Council Resolutions on Human Security’ in Dianne Otto and Gina Heathcote (eds), Rethinking Peacekeeping, Gender Equality and Collective Security (Palgrave-Macmillan 2014); Gina Heathcote, ‘Naming and Shaming: Human Rights Accountability in Security Council Resolution 1960 (2010) on Women, Peace and Security’ (2012) 4 Journal of Human Rights Practice 82; Dianne Otto, ‘Power and Danger: Feminist Engagement with International Law through the UN Security Council’ (2010) 32 The Australian Feminist Law Journal 99; Tamsin Phillipa Paige, ‘The Maintenance of Heteronormativity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risk (Routledge 2017).
  102. See generally: Judith Butler, Gender Trouble: Feminism and the Subversion of Identity (Routledge 1990); Judith Butler, Bodies That Matter: On the Discursive Limits of ‘Sex’ (Routledge 2011); Judith Butler, Antigone’s Claim: Kinship between Life and Death (Columbia University Press 2000); Eve Kosofsky Sedgwick, Tendencies (Duke University Press 1993).
  103. Queer, Unsure/Uncertain, Intersex, Lesbian, Trans*, Bisexual/Pansexual, Asexual/Aromantic/Demisexual, Gay, and others who don’t identify with these categories.
  104. Dianne Otto, ‘Introduction: Embracing Queer Curiosity’ in Dianne Otto (ed), Queering International Law: Possibilities, Alliances, Complicities, Risk (Routledge 2017).
  105. Faye Bird, ‘“Is This a Time of Beautiful Chaos?”: Reflecting on International Feminist Legal Methods’ (2020) 28 Feminist Legal Studies 179.