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Gender: Gender and Law

GENDER: GENDER AND LAW

The modern Middle East and North Africa contain diverse political structures and a variety of legal regimes, yet the way that law constructs and shapes gender roles, hierarchies, and relationships evidences more similarities than differences throughout the region.

Among the most significant transformations of modernity to have influenced Middle Eastern societies over the last 200 years were far-reaching reforms of administrative structures, processes, and practices. Institutions of governance changed dramatically throughout the region, especially after the mid-nineteenth century, eventually giving rise to the different political entities and the diversity of legal regimes embodied by the present-day states of the contemporary Middle East. The region today is home to monarchies, constitutional democracies, secular republics, religiously based states, and, in the case of Lebanon's eighteen different legally recognized ethnoconfessional sects, a living remnant of the Ottoman millet system. Yet despite the diversity of politicolegal institutions, gendered aspects of the law are more alike than different throughout the region today.

Factors and forces catalyzing the political and legal transformations in the Middle East were indigenous as well as external. From within the region, the Qajar and Ottoman states decided to introduce parliamentary systems while also improving and centralizing their administrative structures. From outside, particularly after the Ottoman defeat in 1918, European colonial powers and private institutions such as missionary aid societies and Western educational institutions left a profound mark on the legal regimes of the Middle East. Throughout the nineteenth and twentieth centuries, whether Ottoman, Qajar, colonial, or postcolonial, there were limited progressive transformations or advances in women's rights and duties under the law. Middle Eastern women's participation in the labor force as well as in decision-making bodies remains among the lowest in the world. Women cannot vote or stand for election in Kuwait; neither men nor women can vote or be elected in Saudi Arabia and the United Arab Emirates. In most of the Persian Gulf countries, women still cannot travel alone. Women in Saudi Arabia are forbidden by law to drive, and, until the early 1990s, Lebanese laws prevented women from owning their own businesses without obtaining permission from a male relative.

A leading issue of feminist legal activism in many countries is that of women's equal citizenship rights: Women who marry foreigners usually do not enjoy the legal right to extend their citizenship to their husbands or their children, unlike men, who can extend their citizenship to foreign wives and any children they bear. Lebanon and Israel have witnessed very similar public debates and political reactions concerning civil marriage between individuals of differing religions. Both states forbid secular marriage ceremonies but do recognize civil marriage certificates from other states. As a result, Israelis and Lebanese who wish to marry outside their faith traditions must either convert to the religion of their intended spouse or travel outside their countries (usually to Cyprus or Europe) to be married in a civil ceremony.

Despite legislation that in theory protects women and girls from harm and ensures respect for their rights, customary practices continue in many countries of the modern Middle East that violate international laws and conventions safeguarding the rights of women, girls, and sexual minorities: female genital mutilation, early marriage, denial of schooling, crimes of "honor," domestic violence, and the arrest, imprisonment, and torture of lesbians, gays, and transgendered persons. Many of these problems are present in other regions of the world as well, but a particular combination of historical, ideological, and geopolitical factors has rendered issues related to gender and the law particularly sensitive in the contemporary Middle East. Legal and educational responses to violations of the rights of women, children, and sexual minorities in the Middle East are complicated by some Western attempts to demonize or pillory the peoples and cultures of the Middle East by highlighting these very practices as evidence of the inferiority or barbarity of the region in comparison with the West. A notable repercussion of the tense geopolitical confrontation between the Arab-Islamic world and the West over the last two centuries has been the depiction of Arab and Islamic woman either as icons of cultural purity, moral righteousness, authenticity, and inviolability, or as symbols of Middle Eastern backwardness and a general failure to modernize. Hence, issues related to gender, the law, and women's rights and duties in the region are among the most controversial topics of public discussion, media coverage, and academic inquiry.


Nineteenth-Century Reform: The Gendered Repercussions of State-Building and Colonialism

The Ottoman Tanzimat (reorganization or reordering) reforms of the mid-nineteenth century encompassed civil, legal, educational, economic, and political decrees. Though designed to stave off European influences in the region, attempts at reorganizing the Empire were also responses to growing internal pressures for legal reform and greater respect for human rights, particularly in large multiethnic cities. The Gühane Imperial Edict of 1839 guaranteed equal rights before the law for all persons regardless of ethnicity or religious confession (though not, however, gender). By establishing principles that enabled executive and legislative powers to pass from monarchs to representative bodies, the Gühane Edict echoed U.S. and French revolutionary political discourses and ideals, and revealed indigenous attempts to reconceptualize and modernize the theory and practice of citizenship in the Ottoman Empire.

One of the aims of the Tanzimat was to create a nondenominational, secular judicial system. The Hatt-i hümayun (Imperial Edict) of 1956, often referred to as the "Ottoman Bill of Rights," reiterated the Gühane Edict's legal designation and political embrace of non-Muslim groups as full citizens. With this declaration, Christians as well as Jews could serve on the Ottoman Council of State and act as judges in the Supreme Court. These and other reforms of the Tanzimat helped to lay the groundwork for the introduction into the region of the quintessentially Western political institution of modernity: the nation-state.

Some of the Tanzimat's economic reforms resulted, unintentionally, in the undermining of traditional communal support systems that had protected women, widows, orphans, the poor, and the disabled. Without the benefit of legally codified frameworks to safeguard their needs and interests during a period of rapid change, such vulnerable groups were among the hardest hit as the Ottoman Empire began to disintegrate. In particular, the Land Reform Law of 1858 attempted to secure and clarify land-tenure systems by reaffirming state ownership of land, and granted deeds of usufruct in the names of individuals to those in occupation and possession of productive tracts of land. The aim was to encourage settled and productive agriculture and thus to produce state revenues. Land reforms led, in effect, to an institution similar to private property, thereby transforming traditional tribal and village social structures into more formally institutionalized and legally codified landed feudal structures. Tribal shaykhs (leaders) and rural nobles became wealthy landlords, while their kinsmen and followers became tenant farmers. The prohibition on collective rights to land resulted in a new, profoundly hierarchical and asymmetrical social structure that created a new elite class of wealthy land-owners and a newand much largerclass of impoverished farming families and landless individuals. Traditional moral structures emphasizing rights and responsibilities rooted in a pastoral nomadic or a rural agricultural lifestyle based on solidarity, honor, mutual assistance, and dignity began to break down as populations throughout the region became increasingly integrated into legally codified relations with centralized administrative authorities (usually major cities such as Baghdad, Damascus, and Istanbul), as well as increasingly integrated into an international capitalist order.

Socioeconomic transformations of modernity generated new social roles and relationships, altered age-old solidarities, and created new hierarchies and inequities. The Ottoman legal system could not meet these rapidly emerging challenges by codifying new rights, duties, and requirements. It was left primarily to the European colonial powers to reconfigure Middle Eastern societies and to address pressing needs for legislation in fields as diverse as commercial, property, and criminal law. In so doing, they usually introduced versions of British or French legal systems, complete with their underlying frames of meaning and values. As a result, states throughout the contemporary Middle East have hybrid legal systems and constitutional structures that reflect the colonial era's legacy. Syria and Lebanon have French-influenced systems, whereas Jordanian and Iraqi laws were influenced by the British. Palestine, never having achieved sovereignty as a state, has a particularly hybrid legal legacy: Palestinians in the West Bank and Gaza Strip live under an overlapping mélange of Ottoman, British Mandatory, and Jordanian law, all of which are framed and affected by the current decisive legal system: Israeli military law.

Throughout the region, and regardless of the European power that had been in place in each country after the end of World War I, family law and laws related to "personal-status affairs" (i.e., laws related to birth, marriage, inheritance, burial, adoption, child custody, alimony, and divorce) remained largely beyond the reach of colonial powers. With the exception of Turkey, which under Atatürk had secularized its legal system, and Tunisia, which under Bourguiba had modernized personal-status laws, family law and laws related to gender issues throughout most of the remaining states of the Middle East remain conservative.


Gender and the Law in the Contemporary Middle East

Whereas the basic political unit in the Western liberal state was the individual citizen, the basic unit of society and politics throughout much of the Ottoman Empire remained the extended family, the faith community, or the confessional sect (millet). Hence, the subject of legal rights and duties was not always or primarily the abstract, free-agent individual, but rather the individual as embedded in and tied to family, community, or sect. This relational conception of the subject of the law has had a profound impact on the interplay between gender and the law throughout the Middle East, because the family, community, and sect in the region are profoundly hierarchical and patriarchal structures in which males and seniors are accorded more privileges than females and juniors. Patriarchy, not Islam, Christianity, or Judaism, accounts for the differential legal status and political roles of women and men throughout the Middle East.

Regardless of laws ensuring equal treatment in theory, patriarchal roles, ideologies, and practices continue to hold sway not only in formal institutions of governance, but even more so through informal, daily structures of resource allocation, decision making and power brokering. One such structure is the informal social network, which can link neighborhoods, families, villages, and cities, and can even transcend state borders through the manipulation or invocation of kin and ethnic ties. Much of everyday life, public and private, is shaped by the dynamics of informal networks that operate according to custom, not codified laws. Given the challenges of administrative centralization and national integration that have confronted the largely artificial and externally imposed states of the region, monitoring, legislating, and policing gender-related practices in these informal social networks has been difficult.


Personal Status Laws

Given that the Middle East is comprised of new states founded on ancient informal civilizational structures, national identity in most countries of the region is fraught with competing tensions. In most cases citizenship, citizens' rights and their sense of national and supra-local identities, collective membership, and political belonging are not as clear or as compelling as are local kinship, religious or ethnic modes of identification, and political action. This has far-reaching implications for women's legal rights and their participation in national politics, given that the cultural construction of kinship and the social and political organization of local-level confessional communities in most countries of the Middle East are profoundly patriarchal. Following the end of the colonial era, the attaining of independence, and the creation of national governments throughout the region, gender-biased customs and procedures attained a more formal status in legislation. As a result, women in many countries of the Middle East do not enjoy all of the basic rights and privileges enjoyed elsewhere. In theory, women in most countries in the region are allowed to vote and to run for any office in the land. The constitutions of most countries uphold the equality of women and men. However, actual practices do not reflect constitutional writ, largely because of the maintenance of personal status laws.

Personal-status laws not only give religious authorities and conservative political actors extensive powers over women's lives in situations of marriage, divorce, child custody, and inheritance, but they also emphasize women's roles as wives, mothers, and daughters at the expense of their roles as citizens. Personal-status laws can and do reduce women to the status of "legal minors" requiring the agency of male relatives or male religious specialists to maneuver in society outside the domains of family and home. This is a primary hindrance to women's ability to initiate legal or political action as agents on their own. Considerable grassroots political and legal activism has been focused on this problem for several years, particularly by transnational organizations such as Women Living Under Muslim Laws and Equality Now (neither of which is based in the Middle East). Personal status laws limit women's legal recourse in the event of divorce to the archaic rulings of religious authorities. In Lebanon, home to eighteen legally recognized confessional sects, this is a particularly complex and vexing issue. Orthodox Jewish women in Israel and Christian women in Arab countries have a much more difficult time obtaining a divorce than do their Muslim counterparts in the Arab world or in Iran.

Throughout the Arab-Islamic world, regardless of confessional membership, child custody in the event of divorce always favors the father. Patriarchal values and institutions dictate, in practice and in law, that the father's family has ultimate custody of all children because they are legally defined as members of his patriline under personal status laws. While they are young, children may stay with their mother following a divorce, but by adolescence, children of both genders are expected to live with their father's family. Inheritance presents a variety of legal rulings depending on one's confessional membership. Sunni religious courts grant daughters less than sons: In the event that a Sunni man has fathered only daughters, they usually will inherit less from their father than will their male paternal cousins and uncles. Shiʿite religious rulings on daughters' inheritance are much more equitable. In Lebanon more than a few Sunni men having only daughters, no sons, have become Shiʿite in order to pass their wealth and property directly to their daughters. Having a confessional membership is part and parcel of being a Lebanese citizen and profoundly shapes one's legal identity, status, and role. Atheism and secularism are not, legally and administratively speaking, options for anyone, male or female.

Although most countries in the region have signed the Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW), most have also entered strong reservations concerning issues related to personal-status laws. For example, in Lebanon (having had a French colonial influence) and Jordan (which had a British colonial influence), women married to non-nationals cannot pass their citizenship on to their children. Soon after the cessation of the war in Lebanon in 1990, Lebanese women won the right to travel abroad without the permission of their male relatives. Jordanian women are still pressing for this same right more than a decade later. A primary demand of Jordanian feminists, the rescinding of Article 340 of the Penal Code, which effectively permits men to kill female relatives to avenge "crimes of honor," has yet to be realized. A Jordanian forensic doctor recently estimated that a quarter of all murders committed annually in Jordan are "honor killings" (U.S. Department of State Annual Human Rights ReportJordan 2000). Yet, to appease a political opposition that utilizes the rhetorical discourses of Islamic authenticity and family inviolability, the Jordanian government has not been able to halt such killings.

Although "honor crimes" have yet to be criminalized in Lebanon either, avid public discussions and debates about these crimes (as well as other controversial issues such as domestic violence, homosexuality, mixed marriages, civil marriage, and abortion) are standard fare on Lebanese public television and in Lebanese magazines. Though laws may be slow to change, public debate over legal and gender issues is hastening thanks to the mass media.


Gay, Lesbian, and Transgendered Rights

In recent years, public debates concerning sexuality, gender, and sexual preference have become more common in most major cities of the Middle East. Although calls for gay, lesbian, and transgendered rights are still more controversial in the Middle East than they are in Europe or North America, annual gay-pride events take place publicly in Tel Aviv and in semipublic clubs in Beirut. Films, magazines, and web sites that address the special concerns and interests of gay, lesbian, and transgendered communities in the Middle East also allow members of the Jewish, Arab, Iranian, and Turkish diasporas to share information and build alliances that transcend national as well as confessional dividing lines in the region. Key among the concerns of gays, lesbians, and transgendered persons in the Middle East have been the invocations of religious discourse and religious teachings to criminalize homosexual activities. Activism in opposition to such human-rights abuses has included efforts by Amnesty International and Human Rights Watch, whose spokespersons have decried the targeting of gay men in Egypt and lesbians in Lebanon as part of wider repressions of human-rights activists, religious minority groups, political opponents, journalists, and many others who question the legal and political status quo in the region. Defending the rights of gays, lesbians, and transgendered persons also affords opportunities to address wider human-rights abuses and legal deficiencies related to gender issues, enabling activists to reiterate and redefine the spaces and subjects of the law, as seen in this 26 August 2002 communiqué by the director of a Lebanese legal rights institute protesting the arrest, imprisonment, and mistreatment of two lesbians in Lebanon: "We are aware of the conservative social settings of Lebanon and the negative societal attitude toward the homosexual community. However, this does not entitle the Lebanese government to deprive the liberty of homosexuals, nor does it warrant the torture and abuse sanctioned by the Lebanese police. Through this system of human rights abuses, Lebanon is breaching many international covenants and human rights conventions of which it is a member, not to mention basic human integrity" (Mouhrab, Arz).

Gender and the Law in the Middle East: Regional and International Perspectives

Regional and international developments, particularly the 1995 Beijing International Woman's Conference, Jordan's participation in the Euro-Med partnership, and the Reform Movement in Iran, have already had a noticeable impact on the official framing and treatment of women's issues and concerns not only within, but also beyond, the Middle East. International laws, movements, discourses, and conventions have had a growing impact on the way gender and the law are perceived and discussed, and how they interact and develop in the region.

One example of Middle Eastern women coming together to voice concerns about laws and rights in order to build political alliances was the Women's Tribunal, first held in Beirut in 1995. The Women's Tribunal was an international event, not a strictly Lebanese affair, but its convening in Beirut caused a public stir and generated fruitful and lively discussions about the psychological dynamics, legal consequences, and ideological underpinnings of women's domination in patriarchal societies. The tribunal, the first event of its kind ever to be held in the Middle East, dramatically broke through the silences that isolate women behind walls of shame, fear, and despair. It provided a rare opportunity for Arab women from different countries and various backgrounds to join together, share experiences, and form networks to confront the issue of violence against women in all of its forms: domestic, political, economic, and military.

Throughout the region, the primary obstacles to the attainment of full legal and political rights by women and sexual minorities are: cultural and psychological obstacles that hinder the transformation of personal experiences, attitudes, and stances into political agenda; women's continuing pronounced economic dependence on men; and legal and political structures that do not respect the human rights of either men or women, as well as the continuing enforcement of personal-status laws. Regional and international activists cite a crucial need for broad social movements based on grassroots networks that transcend class, ethnic, confessional, ideological, and gender divisions to surmount these obstacles, which are interrelated and interlocking. The past decade has witnessed increasing attempts to link national, regional, and international human-rights monitoring agencies in order to advance women's rights as well as the rights of gays and lesbians. Largely through the medium of the internet, groups and individuals have been able to join forces in new ways to expose violations of women's rights and to protest the draconian treatment of gays and lesbians.

Yet, given the overall poor socioeconomic and human-rights situation throughout the region, a focus solely on women's rights or gay rights strikes some as narrow. One of the best-known human-rights activists in the region, the late Laure Mughaizel, a Lebanese human-rights activist, feminist, and lawyer, noted shortly before her death: "What will it serve us to fight for women to have rights equal to those of men if men's rights are also deficient?" (Mughaizel, public speech in 1996 in Lebanon). Ultimately, any analysis of gender and law in the Middle East must take into consideration the political economy of the region, as well as ongoing debates over universal human rights and their definition in the evolving body of international laws and conventions.

See also Crimes of Honor; Female Genital Mutilation; Gülhane Imperial Edict (1839); Tanzimat; Tunisia: Personal Status Code.


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Laurie King-Irani

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