Leading Arguments Against Women's Legal Equality
Highlights of a National DebateAna Elena Badilla
The years 1988 and 1989 were an important period for feminism in Costa Rica. During this time we witnessed a national debate following First Lady Doña Margarita Penón Gòngora´s presentation to the public, on March 8, 1988, of the Proyecto de Ley sobre la Igualdad Real de la Mujer (Bill for Women's True Equality). The two years of debate that followed in the Legislative Assembly were comparable to the struggle before 1949, the year in which Costa Rican women finally obtained the vote (see Sharratt, chap. 8 above).
The debate over the Proyecto de Ley sobre la Igualdad Real de la Mujer was carried on in the assembly; in the media; within political parties, unions, and feminist organizations; and among citizens in general. In all these places, defenders and opponents of the bill voiced their opinions, which ranged from total to partial support to opposition, and from superficial to profound criticism.
Those who opposed the bill cited four principal arguments (CMF, 1988):
- The proposed gender proportionality in politics was unconstitutional.
- There was no need for the bill because there was no discrimination against women in Costa Rica.
- The term true equality was inappropriate because the bill might indeed provide a practical mechanism for achieving equality, which was not a politically desirable outcome.
- The provision of shared financing of day-care centers should not be a concern of employers.
This article analyzes these criticisms in order to identify the bill's virtues and defects, its social significance, and its value for the Costa Rican feminist movement.
Rejection of Gender Proportionality in Politics:
The Fear of Shared PowerThe first chapter of the Proyecto de Ley sobre la Igualdad Real de la Mujer, which dealt with women's political rights, was without a doubt also its best-known part. It was extensively analyzed and debated by the press and the members of the assembly. The intent of the chapter was to promote greater participation of women in positions of political decision making, whether as elected officials or presidential nominees. This chapter was watered down through a legalistic discussion that, in the last analysis, reflected the fear of the patriarchal powerholders that they might lose their hold on the reins of the political system and be required to relinquish to women a democratic share of men's decision-making powers.
La Prensa libre (1988b), one of the major national newspapers, ran an editorial on March 11 stating the following:
The principle of nondiscrimination which our Political Constitution embraces rests upon the true equality of opportunity for both sexes. Thus, all can be nominated as candidates or elected as officials, according to their true or presumed abilities, regardless of gender. Only when an individual-man or woman- with qualifications and enough support to be nominated as a candidate is denied the candidacy, and another, without better qualifications or support becomes the candidate solely because he or she belong to the correct gender to ensure the proportionality which the law demands-we repeat, only at that moment-would we be witnessing discrimination on account of gender, which would go against the spirit of the Constitution.
In the same vein, the newspaper La Nación (1988), a counterpart and competitor of La Prensa Libre, argued on March 31: "We think it dangerous to require that political parties distribute representative positions on the basis of proportionality between men and women in the country. Individuals are not qualified, intelligent, or service-minded only because they are either men or women."
We heard the suitability argument also from women who held important public office and opposed the bill for political or ideological reasons. As Marcelle Taylor, member of the opposition, said (1988), "With a law proclaiming the equality of women, we do not seem to take into account women's training, qualifications, loyalty, and other values but merely weigh the fact that they are women."
The Colegio de Abogados (National Lawyers Association), the national professional organization to which practicing lawyers are required by law to belong, named a Commission for Women's Affairs which stated, "Changes like those suggested by the bill would violate the rights of male and female citizens who in truth are the persons who decide candidacies with their vote" (CA, 1988):
More interesting still is the statement of the Tribunal Supremo de Elecciones, the independent body that supervises the honesty of elections in Costa Rica. Upon inquiry by the Social Affairs Commission of the Legislative Assembly, the Tribunal Supremo responded, "To acknowledge the need of reforming Article 60 of the Electoral Code so as to eliminate discrimination-in accordance with the bill under consideration- would mean accepting that clear constitutional and legal dispositions which prohibit any kind of discrimination on account of gender have been violated" (TSE, 1988)
This was a very surprising comment for the tribunal to make. Political discrimination against women is probably so overwhelming that the tribunal preferred not to acknowledge reality: Costa Rican women constituted more than 45 percent of the electorate in the 1980s, but their participation in the assembly since 1953 has been only 6 percent (PRIEG, n.d.), and only fifteen women were ministers or viceministers between 1970 and 1989 (CMF, 1989). Is that not discrimination? But that is not the only surprising aspect of the tribunal´s comment. Even stranger is that following the Tribunal Supremo´s statement, the press and many members of the assembly began to criticize the bill as unconstitutional-a judgment reserved for the Supreme Court. Moreover, many critics alleged unconsitutionality without asserting the reasons in support of their view.
Finally, of course, the argument was made that the bill's promoters were "politically frustrated women." Sadly enough, the author of that phrase was none other than the chairman of the assembly's Social Affairs Commission, which studied the bill (Caravel, 1988).
The Refusal to Acknowledge Discrimination:
A Vote Against the Essence of the BillBesides their objection to proportionality, critics questioned whether the bill was necessary. "the bill happens to be not only polemic but also unnecessary. It will disturb and upset what has already been established in our Constitution and our laws," editorialized La República, another of San José´s principal daily newspapers, on March 14, 1988, echoing what opposition assembly member Marcelle Taylor had written in La Nación on March 12 (1988). The argument was that the principle of equality is firmly established in the Constitution, and the nation cannot legislate equal opportunities for women because it is impossible to establish equality by force.
The commentators ignored completely the United Nations´ definition of the concept of discrimination against women, which includes "any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment, or exercise by women…of human rights and fundamental freedoms" (United Nations, 1988). Accordingly, a piece of legislation is discriminatory not only when it expressly discriminates but also when its application may have discriminatory effects. Further, the United Nations convention on the Elimination of All Forms of Discrimination Against Women obligates the signatory states to adopt the principle of equality between women and men in their constitutions, and its Article 4 states that the adoption by participating governments of special measures of a temporary character, with the goal of accelerating the actual equality between men and women, is not considered discrimination (United Nations, 1988).
In agreement with that principle, a mere formal constitutional declaration, such as the one provided in Article 33 of the Costa Rican Constitution that "all men are equal before the law," is not sufficient. It will be necessary to establish expressly that women and men are equal before the law. The creators of the Proyecto de Ley sobre la Igualdad Real de la Mujer envisioned it as one of the special measures mentioned by that very convention.
In the wake of the refusal by the press and by assembly members to acknowledge the existence of discrimination against women, one of the specific proposals that evoked most opposition to the bill was the proposal to create an Office of the Defender of Women, the Defensoría or Procuraduría de la Mujer. Opponents protested the creation of the office in La Prensa Libre on March 12 (1988a): "We believe that today flagrant violations of the rights of certain groups of the citizenry may exist. But we could not identify these groups by gender. Besides, even if we accepted that violations of the rights of women take place simply because women are women, we doubt that the creation of a new Procuraduría is the way to overcome those violations."
Assembly commision members who studied the bill shared this opinion. Not even the visit of the imbudswoman from Norway-one of the few countries in which such an institution exists-managed to convince commission members of the importance of the office. Thus, the text approved by the commission eliminated the proposal for an ombudswoman´s office and introduced in its place a proposal to create an office for the defender of human rights, in which would be included a specific ombudsperson for the defense of women, children, and consumers. At that point, the government by executive decree created the Defensoría de la Mujer (Office of the Women´s Defender) (La Gaceta, 1989).
Changing the Name of the Bill:
A Vote Against True EqualityDuring the discussion in the assembly, the element that weighed most heavily against the bill was its very name. All opponents agreed that the bill's title could not be the Proyecto de Ley sobre la Igualdad Real de la Mujer. For some, the most threatening idea was that women wanted a law that not only spoke theoretically of equality, but that would also be an instrument that would contribute to creating equality in practice. Therefore, at the very moment that the assembly sent the bill to commission, assembly member Mario Carvajal suggested a name change to the Bill of Women's Rights (1988). Later another legislator, Jorge Rossi, proposed calling it the Proyecto de Ley de Igualdad Esencial de la Mujer (Bill for the Basic Equality of Woman) (1988). Finally, Norma Jiménez, the only woman member of the commission, moved that the bill be renamed the Proyecto de Ley sobre la Igualdad de Derechos entre Hombres y Mujeres (Bill for the Equality of Rights Among Men and Women) (1988).
Regardless of that change, defenders of the bill continued to call it the Proyecto de Ley sobre la Igualdad Real de la Mujer, and the public continued to identify it as such.
Day Care:
The Worst Threat to Private EnterpriseRarely in our society has an article adopted on behalf of children generated so much opposition as that generated by the proposal for shared financing of day-care centers.
Some groups in Costa Rican society feared that we women might forget that our essence is to be mothers and our basic responsibility is to bear and educate our children. Others viewed the article for the creation of day-care centers for workers´ children under seven years of age as a statist and leftist measure. This group seemed to have forgotten that maternity is an option, not an obligation, and that women working outside the home do not forget their responsibilities toward their children. On the contrary, women bear the brunt of an unequal distribution of household and child-care responsibilities. Women, not men, suffer from the effects of the double or triple day, with one workday for housework, another for child care inside the home, and a third for outside work.
Nonetheless, the press focused on private enterprise opposition to the creation of such centers. The proposed financing divided the cost amount the state, the users, and private entrepreneurs, who were opposed, of course, because they did not wish to consider a reduction of the profits they obtained at the expense of poorly paid employees.
Response to the threat of mandated sharing of the cost of day care was immediate. Emergency meetings were held, and newspapers ran editorials with such titles as, "New tax on Businesses Causes Alarm" (La República, 1989); "Urgent Meeting of Chamber of Commerce Presidents: Private Sector on the Alert" (La Prensa Libre, 1989); "Objections to Surcharge on Business Accounts: Chambers of Commerce Propose changes in Bill on Women" (La Nación, 1989). The representatives finally gave in and determined that day care should be financed by government appropriations and user fees.
The Objections Strengthen Women's Desire to Fight for True Equality
In the last analysis, all the objections against the bill grew out of a patriarchal conception of society. In some cases, the patriarchs refused to recognize that discrimination against women exists, and in others they admitted that women's participation has been limited and attempts should be made to raise it. Those who admitted that attempts should be made, however, proposed to tailor the solution to the efforts and capacities of individual women, without considering the social, cultural, and ideological factors that maintain discrimination and hinder the full access of all women to politics, credit, and civil rights.
During this discussion of the bill, some profound and constructive criticisms emerged. One in particular stands out: After the analysis of its technical faults and the recognition of its importance, the bill became too modest, and more substantial measures should have been proposed to achieve a true change in the situation of Costa Rican women (DiMare, 1988). The bill as such failed to address many issues that contribute to the gravest types of implicit or explicit discrimination women experience daily. Many of the proposed measures were at most timid first attempts toward a real solution. Most of those who defended the bill did not deem it a legal instrument that was going to solve all of women's problems; rather, they saw it as a means of beginning a discussion that previously had never taken place in Costa Rica. There was agreement-not only within the feminist movement and the most progressive sectors of society but also among men and women of the left and the right, among workers and intellectuals, among housewives and professionals- that the approval of the bill was an unavoidable step for further social development. The feminist movement therefore assumed a position of critical approval for a government-sponsored bill, which went beyond the limits the government originally envisioned. In fact, this initiative, promoted by First Lady Doña Margarita Penón, totally escaped the control of the president's office and was embraced by all those women who identified with it.
Even in the most distant rural communities, women came to know about the Proyecto de Ley sobre la Igualdad Real de la Mujer. They analyzed it and felt that through it they claimed their basic rights. The growth of women's organizations, the unification of those organizations around a common goal, and , above all, the expression of the feminist movement as a representative actor in society with its own voice were undoubtedly the main achievements of this much debated bill. This process of debate cleared a path toward true equality for women.
Biodata
Ana Elena Badilla Gómez, a Costa Rican, holds a licenciatura in law from the Universidad de Costa Rica. She also did graduate work at the Centro Interdisciplinario de Estudios de la Mujer (CIEM)(Center for Interdisciplinary Women's Studies)(UNA). She was a legal adviser for the Centro Nacional de Desarrollo de la Mujer y la Familia at the Ministerio de Cultura, Juventud y Deportes (Ministry of Culture, Youth and Sports), and for the program Mujer No Estás Sola. She was the coordinator for diffusion of the law's text and information about the Law for the Promotion of Women's Social Equality at the Fundación Arias para la Paz y el Progreso Humano (Arias Foundation for Peace and Human Progress) and currently is the director of the foundation's Centro para el Progreso Humano (Center for Human Progress), which focused exclusively on women. She coordinates the center's programs for women with a regional, that is, Central American, scope.
References
Carvajal, Mario. 1988. "Declaraciones, Sesión de la Comisión de Asuntos Sociales de la Asamblea Legislativa." Expediente 10605, Tomo I. September 28.
Centro Nacional para el Desarrollo de la Mujer y la Familia (CMF). 1988. Proyecto de Ley de Igualdad Real de la Mujer. San José: Ministerio de Cultura, Juventud y Deportes.
1989. Situación de la mujer costarricense. San José: Imprenta Nacional. Comisión de Asuntos de la Mujer, Colegio de Abogados (CA). 1988. "Documento presentado a la Comisión de Asuntos Sociales de la Asamblea Legislativa. " Expediente No. 10605, Tomo I.
DiMare, Alberto. 1988. "Igualdad real de la mujer." La Nación. San José. September15.
Editorial, La Nación. 1988. "Igualdad para la mujer." San José. March 31.
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Editorial, La Prensa Libre, 1988a. "Observaciones a magnífica intención." San José March 12.
1988b. "¿Qué es igualdad real?" San José. March 11.
1989. "Reunión urgente de presidentes de cámaras. Sector privado en estado de alerta." San José. February 14.
Editorial, La República. 1988. "La igualdad real de la mujer. " San José. March 14.
1989. "Alarma nuevo impuesto sobre las planillas." San José. February 14.
Jiménez, Narma. 1988."Moción, Sesión de la Comisión de Asuntos Sociales de la Asamblea Legislativa." October 19.
La Gaceta. 1989. Decreto 19157. No. 166 (September 1).
Programa Interdisciplinario de Estudios de Género (PRIEG). n.d. "Situación de la mujer en Costa Rica: Un perfil de su discriminación." Mimeo. San José: Universidad de Costa Rica.
Rossi, Jorge, 1988. "Moción, Sesión de la Comisión de Asuntos Sociales de la Asamblea Legislativa." December 13.
Taylor, Marcelle. 1988. "Ley de la mujer: Esa no es la ley que esperamos las mujeres." La Nación. San José. March 12.
Tribunal Supremo de Elecciones (TSE). 1988. " Pronunciamiento presentado a la Comisión de Asuntos Sociales de la Asamblea Legislativa." Expediente No. 10605, Tomo I.
United Nations. Center for Human Rights. 1988. Human Rights-A Compilation of International Instruments. New York: United Nations.
Acknowledgments
I am grateful to Alda Facio for comments on an earlier draft of this paper. This analysis represents the author's position and does not constitute a statement by the Fundación Arias para la Paz y el Progreso Humano.
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