Legal Capacity & Gender

This book is one of the first to explore legal capacity denial in relation to women, disabled women, and gender minorities. It discusses in depth the meaning of the right to legal capacity and its two core elements - legal personhood and legal agency. Using critical feminist, disability, and queer theory, it offers insights into the construction of legal personhood and its role as a predictor of power and privilege. The book also identifies patterns of oppression through legal capacity denial in various jurisdictions and discusses cases in which modern law continues to enforce these denials.
Legal capacity is essential for an individual's participation in society. It is required for voting, marrying, inheriting, contracting, consenting and other areas that are critical components of social structures and can be predictors of power and privilege. Historically, women have been denied legal capacity in many ways. For example, they have been denied legal capacity to vote, inherit, and contract - and some of these practices continue today. The legal capacity of disabled women is frequently denied through laws that deny decision-making on the basis of disability, such as guardianship, mental health laws and capacity to consent laws. In turn, the legal capacity of gender minorities is also denied in numerous ways - for example, in situations where government-issued identification, such as a passport, is required for the exercise of legal capacity but requires gender-binary identification. In these situations, it may be impossible or very dangerous for some gender minorities to acquire or use such identification - resulting in an inability to exercise their legal capacity. In these ways and many others, the intersection of disability and gender can result in multiple forms of marginalisation through legal capacity denial.The right to legal capacity has been protected in international human rights law since the 1960s. It is derived from the right to equal recognition before the law, which can be found in the 1966 International Covenant on Civil and Political Rights (ICCPR). It was reiterated in more detail in the 1979 Convention on the Elimination of Discrimination Against Women (CEDAW) and finally enumerated extensively in the 2006 Convention on the Rights of Persons with Disabilities (CRPD). Article 12 of the CRPD explicitly guarantees the right to legal capacity and establishes a state obligation to provide support for the exercise of legal capacity. This book argues that the right to legal capacity is a non-derogable civil and political right. It presents both a legal argument to support this, as well as a normative analysis of the importance of the right to legal capacity in maintaining equality in socio-legal systems.

In addition, the book presents solutions: it identifies practices to learn from in various jurisdictions around the world - including both civil law and common law jurisdictions. It also uses case studies to illustrate the ways in which existing laws, policies and practices could be reformed. As such, the book offers both a novel contribution to the field of legal capacity law and a tool for creating change and helping to realise the right to legal capacity for all.