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Excerpted from: Berta Esperanza Herndez-Truyol, Latinas, Culture and Human Rights: A Model for Making Change, Saving Soul, Women's Rights Law Reporter 21-43, 22-30 (Summer/Fall 2001) (189 footnotes) (Full Document)

Berta Herndez Truyol


The issues of race, gender, and culture are salient considerations in exploring the human rights dimension to an analysis of Latinas' location in societies and in using the model to advance that position. Latinas, inside and outside the United States, must operate within a complex system of culturally derived racialization and sexualization. Within majority communities, Latinas are racial 'others,' subordinated because their racialized ethnic origins separate them from the normative standards of personhood. Moreover, within their own communities, whether inside or outside the United States, Latinas become second class because of their sex, a deeply-imbedded cultural trope that is definitional of women's worth and particularized roles. Both locally and abroad, women's distance from normal can be exacerbated if they are racial (and sexual) others within their own communities.

An interrogation of the possible interventions that human rights norms can afford Latinas, requires a scrutinization of the available instruments that afford useful strategies for the progressive development of women in the Americas. Specifically, a consideration of the utility of the International Convention on the Elimination of all Forms of Racial Discrimination (CERD), the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW), and various regional documents that address issues pertinent to women in the Americas is necessary.

A. Varied Conceptions of Race, Ethnicity, and National Origin

An examination of CERD reveals some striking features. Although from its name this is anything but apparent, CERD is not solely a race convention; indeed, it provides:

In this Convention, the term 'racial discrimination' shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.

This definition both presents and depicts the problem in talking about race and ethnicity: CERD defines ethnicity as, and therefore conflates it with, race.

However, in most places in the Americas, race and ethnicity are different classifications. *23 To be sure, there can exist inter-ethnic racial conflicts and inter-racial ethnic conflicts, which are all but obscured if race and ethnicity are rendered synonymous categories. Beyond collapsing race and ethnicity, CERD conflates race with color, descent, and national origin. These, too, are matters related to, indeed interdependent with, but separate from race or ethnicity.

Such racialization-of-differences paradigm is the predominant view of difference within the United States - where national and ethnic identities are considered racial differences. The translation of this local idiosyncrasy to a global definition unearths the hegemonic underpinnings of international norms. Moreover, this inaccurate definition, disseminated and adopted world-wide as law, reinforces a one-axis approach to analysis of identity rather than the more accurate multidimensionality perspective. Indeed, a multidimensionality perspective is much more realistic in the context of the human condition and our daily existence.

Beyond the incoherent definition of race in CERD, it is also important to understand that different cultural groups have different understandings of the concept of race. One brief but poignant example effectively crystallizes the divergent dominant and silenced social constructions of race. Inherently, the Latina/o and the United States constructions of race "are polar opposites." Indeed, in the United States, the central, essential, axiomatic paradigm that courts religiously accept, believe in,and impose is the 'one drop' rule. This model dictates that, regardless of phenotype, one drop of black blood makes a person black. Under this logic, there is no amount of 'whitening' that can render one white, normatively speaking. As Gunnar Myrdal has articulately described,

The 'Negro race' is defined in America by the white people. It is defined in terms of parentage. Everybody having a known trace of Negro blood in his veins - no matter how far back it was acquired - is classified as a Negro. No amount of white ancestry, except one hundred percent, will permit entrance to the white race.

To be sure, case law adopts this approach:

'[W]hite persons' within the meaning of the statute are members of the Caucasian race, as Caucasian is defined in the understanding of the mass of men. . . . The term excludes . . . American Indians. . . . Nor is the range of the exclusion limited to persons of the full blood. . . . [M]en are not white if the strain of colored blood in them is a half or a quarter, or, not improbably, even less, the governing test always . . . being that of common understanding.

In stark contrast to this historically derived United States social construction of race is the caribe/o social construction that subscribes to the notion of blanqueamiento (whitening) - ironically a 'one drop' rule of sorts. Pursuant to this version, however, the paradigm is reversed: 'one drop of white blood starts you on the [desirable] route to . . . whiteness.'

It is noteworthy, however, that while Latinas/os and Anglas/os differ on their respective constructions of race, they agree on the favored race: white. From the Latina/o lens, this represents the colonized internalization "of the colonizer's predilection" for whiteness as reflected in the Spaniards' carry- over to the New World *24 of their racial biases as represented by the "expulsion of Jews and Arabs from Spain." During colonization, to ensure 'purity of blood,' the Spaniards established a complex system of racial categorizations that included the prohibition of public office holders from having a 'taint of Indian, Jewish, or Arabic blood." These categorizations survive today, albeit in an informal fashion, in the South, Central, Latin Americas, and the caribe and form the basis of unstated, buried, complex forms of racisms that while rather different from those existing in the United States nevertheless prevail and pervade all social locations.

These differences in social construction of race/ethnicity between the majority and Latinas/os result in peculiar outcomes that are only explicable by the dramatically divergent cultural racial perspectives. In fact, statistical reports reveal that approximately 95% of Latinas/os identify themselves as white notwithstanding the 'fact [that] most [Latinas/os] [are] racially mixed, including combinations of European White, African Black, and American Indian . . . .' Contrasted to this Latina/o self-identification, if one considers the United States construction of race, it is an impossibility for 95% of Latinas/os to be classified as white. Nevertheless, this is the Latinas/os' own truth.

Significantly, international human rights norms which protect against discrimination on the bases of 'race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status' should easily be able to negotiate racial and ethnic paradigms that differ from each other based on cultural perceptions. However, CERD's version, by collapsing myriad different categories into 'race' appears to impose one particular racial interpretation - one that comports to the dominant view within the United States.

The different bases and histories of racisms, as well as the different forms in which racial/ethnic prejudice manifests itself in different societies, suggest that it would be appropriate first to deconstruct and then to reconstruct the definition of racial discrimination contained in CERD. This would allow inquiries that can lead to understandings of their origins and current manifestations of socialized views in diverse cultural settings. Indeed, a reconstructed paradigm that allows global discourses across cultures would embrace different peoples' varied realities and would permit the attainment of better human understandings and harmony. Only then will equality be attainable. To be sure, only such process will permit the eradication of the ethnic and racial subordination that Latinas/os experience within the United States, and the gender based subordination Latinas experience within their own communities - both within and outside of the borderlands of the United States.

Thus, as a beginning point to urge a human rights model for progress for Latinas in the Americas, we need to re-imagine CERD in a global fashion. The covenant must not only continue to protect Latinas against discrimination on the basis of race, but it also must protect the other covered categories as phenomena and possible sites of oppressions that are different from, or simply confounded by, race.

For all Latinas/os, regardless of whether they are raised within or outside the United States fronteras, their identity narratives are "based upon [their] ethnic/national origin/social/cultural identity." However, while "[f]or the Latinas/os outside the United States, this is the dominant" 'normative' paradigm, for those *25 raised within the United States this paradigm loses normativity as it is subordinated to the United States' dominant racial paradigms. Thus the serendipitous geographic location of Latinas/os defines their racial/ethnic self-identification as valid or aberrant. The instruments that we use to protect these multiple interdependent and indivisible categories, as well as the interpretive process in their application, need the fluidity and flexibility not to essentialize and to permit the mapping of these different geographies regardless of location. Indeed, the documents need to validate, rather than negate, multicultural legitimacy.

B. The Omission of Sex as an Element of Discrimination

Another reality is that CERD does not at all consider sex in the context of racial discrimination. This observation regards both race and issues of sex/gender. Indeed, CERD's preamble is a prime example of why we have to insist upon a new construction of these documents that consciously and methodically considers sex. In its preamble, the Race Convention makes reference to the non-discrimination principles of the United Nations' Charter as well as the Universal Declaration, both of which include sex. Yet, CERD then continues by providing for the entitlement of rights and freedoms therein 'without distinction of any kind, in particular as to race, colour, or national origin' excluding sex. This is both significant and tragic because there are documented gendered dimensions of racial discriminations.

It is important to explore both the successes of international instruments as tools for women's progress and emancipation as well as the erasure of sex from both international and regional instruments, even in contexts that particularly affect women. It also is necessary to addresses the inescapable gendered dimensions ofracial discrimination - particularly a definition that conflates ethnicity, descent, national and ethnic origin. For example, it is necessary to explore the complex nature of cultural protections to recognize that culture can be both a tool of the oppressor to decimate tradition and a weapon of tradition to decimate women.

Sadly, our world is replete with present day examples of gendered tragedies - from honor killings in India and Brazil, to de jure disenfranchisement of women in some states and de facto denial of suffrage to the poor in virtually every state; from segregation (as varied as the Taliban's assault on women in Afghanistan, job apartheid worldwide, and the Black/White wealth disparities in the U.S.) to blatant sex *26 and gender discrimination and stereotyping; from physical violence to economic assaults; from rape for ethnic cleansing to rape for sport.

In reviewing the realities of women's lives worldwide in the context of international human rights, two distressing facts surface. First, the rules are, at best, imperfect and, at worst, venal in effecting women's exclusion - silencing women's voices, rendering women invisible, relegating women to second-class citizenship. Second, women simply do not universally enjoy human rights, as the examples above demonstrate.

To be sure, this is as true in the West as in the East; in the North as in the South. Regardless of the indicators used - employment, economics, education, personal autonomy, political participation, health, or personal security (meaning freedom from all types of violence), all concerns purportedly protected by international human rights documents - women remain a subordinated class. Notwithstanding our legal rights, 'the universal [reality] is that women are routinely subjected to torture, starvation, terrorism, humiliation, mutilation, rape, . . . health risks [(maternity and otherwise related)], economic duress, and sexual exploitation, simply because of [our] sex.' Our ethnicity, color, race, and national or social origins are often aggravating factors.

It is significant that women have made phenomenal strides in crossing race, color, class, culture, religion, and language borderlands in order to promote and protect women's rights and address their concerns. At the 1993 Human Rights Conference in Austria, women from all walks of life united to put women at the center of a human rights meeting that originally did not even include women in its agenda. An exciting momentum was created that could not be stopped and women from all corners of the world continued this gender-based coalition in Cairo, Rio de Janeiro, Vienna, and Beijing.

A great achievement in promoting the full citizenship of women is CEDAW, which by focusing on all ranges of gender issues - from the public to the private, from the economic to the cultural, from the social to the political, from the family to the government - not only recognizes the need for, but also reinforces, the indivisibility construct. CEDAW embraces women as the complex, multidimensional beings they are. It takes a holistic approach towards women from all walks of life attaining full personhood by recognizing the importance not only of civil and political rights but also of social, economic, cultural, and solidarity rights. This treaty, along with other gender specific documents and perspectives recently embraced by the global community as well as the recognition of the need for gender perspectives in general documents (such as the International Criminal Court statute), are (can be) the foundation for making women's equality an accessible reality. Regrettably, however, CEDAW's failing is that it does not integrate race into its gender-centered construct, a vacuum that parallels *27 the failure of CERD to integrate gender into race-centered construct.

These realities reflect the urgent need to restructure and reinvigorate the human rights vision by making interdependence and indivisibility an actuality in human rights analysis and in all human rights documents. There are several examples of locations where the interdependence focus would enrich the discourses. For instance, in Article 20, the ICCPR provides that '[a]ny advocacy of national, racial or religious hatred that constitutes incitement to discrimination, hostility or violence shall be prohibited by law.' However, Article 20 does not include a prohibition against incitement to discrimination or violence on the grounds of sex, although sex is one of the categories in the general anti-discrimination clause as well as a basis upon which much violence is experienced. Similarly, it is noteworthy that article 13 of the Economic Covenant which provides that 'education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms . . . [and] shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups. . . ' omits sex from the specifically enumerated grounds for promotion of tolerance through education. Significantly, the need for better educational opportunities for women and female children as a means of attaining equality is emphasized in the documents that emerged from the Vienna, Cairo, Copenhagen, and Beijing conferences.

Regional documents are similarly flawed. The American Convention (Article 13(5)) has a provision almost identical to the above-described Article 20 of the ICCPR. Additionally, the African Charter excludes sex from its Article 12(5) prohibition against mass expulsions, a gendered exclusion that is particularly tragic because women and their children comprise 70-80% of the world's refugees.

So, while in theory international and regional documents, without exception, include non-discrimination principles, including sex, at their core, sex is frequently forgotten. This is of particular concern to women of color whose multidimensionality crosses the borders of sex, race, ethnicity, and national origin on a daily basis.

C. The Creation of a Gendered Underclass

Of particular concern to women of the Americas are the normative gendered cultural standards that conspire with sex to create a gendered underclass - a group of olvidadas. To be sure, it is not an easy task to talk about culture when the group being scrutinized is one as diverse as Latinas/os. Indeed, this group has internally distinct and varied languages, migration, education, emancipation, and political histories. 'Roots within the territory now known *28 as the United States are varied, the language of home is not easily predictable, racial composition is best described as mestizaje - [although] within the U.S. borderlands Latinas/os cannot be white because they are Latina/o.'

Yet, while recognizing the diversities that exist between and among the panethnic groups collectively catalogued under the umbrella of the Latina/o label, it is inescapable that the group does indeed share many cultural commonalties. Many of these converge around the importance of family and firm notions about appropriate sex and gender roles - two interconnected foundations of cultural oppression for Latinas. Throughout the Americas - North, South, Central and the Caribbean - women are considered an 'other' from the male norm. They are constructed by the dominant sex as the second sex, all in comparison to the created norm.

Latinas, because of cultural tropes, face additional burdens. In North America, for normativas the axis for sex-subordination is the isolatable single trait of sex. In terms of race, ethnicity, national origin, and language, Anglas are the gendered reflection of the normativo (except, of course, women who also are sexual minorities). For women of the other Americas, the situation is more complicated because the deployment of animus - either at home or abroad - can also be based upon the combination of their sex and their color, accent, appearance, ethnicity, class, and/or national origin. This model is grounded on the cultural expectations that conspire with gendered oppressions to create standards for and interpretations of sex (meaning sex, gender, and sexuality) that subordinate women. Not only do women of color experience the sexism, classism, ethnocentrism, nativism, and racism of the majority culture, they must also contend with the sexism, racism, and classism within their own culture. The dominant culture's gendered borders render all women less than full citizens simply because of their sex. The cultural gendered borders create for women of color a gendered underclass within her own comunidad.

As an example of the impact of cultural norms on Latinas, it is interesting to examine the role of family in defining women's location in society. "La familia is of sacrosanct importance in the cultura Latina. It also is the site initially and continuously responsible for the creation, construction, and constitution of gendered identities."

Our families operate on the extended family model in which abuelas y abuelos are respected and revered, ts y ts are effectively second sets of parents, and primas/os are like additional hermanas/os. This big tent is where we first learn about appropriate and proper conduct, including sex roles, from several generations. These generationally unchanging molds in turn become proof of the correctness of the point, about our proper and befitting places; what conduct is suitable and acceptable; and what comportments and performances constitute cosas feas (ugly things).

Inevitably bridging the diversities among Latinas/os, these learnings and knowledges about fitting demeanor are universally and uniformly gen- dered and sexualized. La cultura Latina rigorously and authoritatively defines, delineates, and enforces gender *29 identities. These fronteras are then used as a tool of oppression and pressure to marginalize those mujeres (andhombres) who do not conform to culturally accepted (and acceptable) designations of gender and sex roles and norms.

Frequently, strong religious ties in many communities of color also aggravate women's gender subordination. For example, in the cultura Latina the Latina's identity is developed in the context of the 'ideal' woman fabricated in the mold of the Virgin Mary, a construct called Marianismo that glorifies Latinas as 'strong, long-suffering women who have endured and kept la cultura Latina and the family intact.' Marianismo is about living in the shadow of all your men - father, boyfriend, son, husband, brother - and your family. Self-sacrifice is lauded. (Mind you, these cultural proscriptions have broad socio-economic consequences: Latinas are the poorest of any demographic group in the United States.) Denial of personhood becomes a virtue instead of a human rights violation.

D. Nuevas Teors: Protection from Harmful Cultural Norms

Women of the Americas provide an interesting twist to the international universalist versus relativist debate. Women of color, whose strongest source of support often comes from community, family, and church are caught in the conundrum that these institutions also dictate cultural norms that are complicit in their oppression and subordination. Thus, ironically, the concept of culture protected in the international sphere, can be used both to subordinate non-dominant cultures in the name of law or to perpetuate women's subordination in the name of cultural tradition.

In this context, our nuevas teors must promote the concept of a benevolent, non-discriminatory, non-subordinating respect for women across cultures. A new paradigm, while embracing and being sensitive to cultural differences, must simultaneously reject oppressive aspects of culture, particularly sex-subordinating or sex-marginalizing practices or beliefs. The project must confront both the internal and external components of the sources of oppression for women of color.

International human rights documents provide a model for such an approach. While treaties consistently address culture as a basis upon which protections must be afforded, not one cites to cultura as the grounds upon which other protected rights may be abridged. For example CEDAW at article 2(f) mandates States Parties to 'take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices which constitute discrimination against women.' In fact, the Women's Convention goes so far as to require States Parties to

take all appropriate measures . . . [t]o modify the social and cultural patterns of conduct of men and women, with a view to achieving the elimination of prejudices and customary and all other practices which are based on the idea of the inferiority or the superiority of either of the sexes or on stereotyped roles for men and women.

Another significant example of the way international instruments seek to protect women from harmful cultural norms is found in the African Charter on the Rights and Welfare of the African Child which expressly balances cultural rights and pretexts to disempower or harm persons simply because of their sex. The Charter requires member states of the Organization of African Unity to 'abolish customs and practices harmful to the welfare, normal growth and development of the child, and in particular . . . those customs and practices discriminatory to the child on the grounds of sex or other status.' Similarly, The Convention on the Rights *30 of the Child requires State Parties to 'take all effective and appropriate measureswith a view to abolishing traditional practices prejudicial to the health of children. '

These examples show that there are dire social, political, civil, and cultural consequences to being a woman of color. Considering the above- enumerated observations about Latina/o cultural tropes, culture, in addition to sex and race, becomes an important focus for a discussion of equality and human rights with respect to women in the Americas. Human rights norms expressly protect culture and cultural expressions as well as equality and non- discrimination. These protections are extended to minority cultures living within a dominant culture as well as to cultural dissenters within their own cultural settings. Cultural protections are especially significant in human rights analyses because they were crafted with the knowledge and understanding that implicitly recognizes that ethnic minorities are particularly vulnerable to a tyrannical majority's whims in denying rights - be this majority the so-called normative community or the empowered within a minority community. To be sure, such concerns and consideration should extend to all women within any culture as well as to minority women within their minority culture.