Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality

The tension between culture or religious practice and gender equality is a globally pervasive challenge in human rights practice. The human rights of women and the right to culture are sometimes in opposition while at the same time, the binary distinction between women’s human rights and the right to culture are also contested. In this paper, I examine how constitutions and courts have negotiated the balance through the interpretation of women’s rights. The goal of this paper is not to examine the exegesis of religious texts or the hermeneutics of canonical arguments which are subjects of plural interpretation, or the burgeoning social movements that are active in claiming a dynamic interpretation of religion and cultural practice. Rather it is to analyze how constitutions and national courts frame the human rights of women in light of culture, and customary traditions. The paper maps the religious and free speech clauses of each national constitution and a compendium of case law from national courts in relation to the judicial interpretation of culture, customary laws, and religion pertaining to questions on women’s rights and gender equality. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights in situations when rights may compete and gender equality hangs in the balance.