Handbook on Gender, Diversity and Federalism 2020932138, 9781788119306, 9781788119290

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HANDBOOK ON GENDER, DIVERSITY AND FEDERALISM

INTERNATIONAL HANDBOOKS ON GENDER Founding Editor: the late Sylvia Chant FRSA, FAcSS, formerly Professor of Development Geography, London School of Economics and Political Science, UK International Handbooks on Gender is an exciting Handbook series under the general editorship and direction of Sylvia Chant. The series comprises high quality, original reference works offering comprehensive overviews of the latest research within key areas of contemporary gender studies. International and comparative in scope, the Handbooks are edited by leading scholars in their respective fields, and comprise specially commissioned contributions from a select cast of authors, bringing together established experts with up-and-coming scholars and researchers. Each volume offers a wide-ranging examination of current issues to produce prestigious and high quality works of lasting significance. Individual volumes will serve as invaluable sources of reference for students and faculty in gender studies and associated fields, as well as for other actors such as NGOs and policymakers keen to engage with academic discussion on gender. Whether used as an information resource on key topics, a companion text or as a platform for further study, Elgar International Handbooks on Gender will provide a source of definitive scholarly reference. Titles in the series include: The International Handbook on Gender, Migration and Transnationalism Global and Development Perspectives Edited by Laura Oso and Natalia Ribas-Mateos Handbook on Gender and Health Edited by Jasmine Gideon Handbook on Gender in World Politics Edited by Jill Steans and Daniela Tepe-Belfrage Handbook on Gender and War Edited by Simona Sharoni, Julia Welland, Linda Steiner and Jennifer Pedersen Handbook on Gender and Social Policy Edited by Sheila Shaver Handbook on Gender and Violence Edited by Laura J. Shepherd Handbook on Gender, Diversity and Federalism Edited by Jill Vickers, Joan Grace and Cheryl N. Collier

Handbook on Gender, Diversity and Federalism Edited by

Jill Vickers (FRSC), Distinguished Research Professor and Emeritus Chancellor’s Professor in Political Science, Carleton University, Ottawa, Ontario, Canada

Joan Grace Professor and Chair of the Department of Political Science, University of Winnipeg, Winnipeg, Manitoba, Canada

Cheryl N. Collier Associate Professor in Political Science, University of Windsor, Windsor, Ontario, Canada

INTERNATIONAL HANDBOOKS ON GENDER

Cheltenham, UK • Northampton, MA, USA

© Jill Vickers, Joan Grace and Cheryl N. Collier 2020

All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic, mechanical or photocopying, recording, or otherwise without the prior permission of the publisher. Published by Edward Elgar Publishing Limited The Lypiatts 15 Lansdown Road Cheltenham Glos GL50 2JA UK Edward Elgar Publishing, Inc. William Pratt House 9 Dewey Court Northampton Massachusetts 01060 USA A catalogue record for this book is available from the British Library Library of Congress Control Number: 2020932138 This book is available electronically in the Social and Political Science subject collection DOI 10.4337/9781788119306

ISBN 978 1 78811 929 0 (cased) ISBN 978 1 78811 930 6 (eBook)

Contents

List of figuresviii List of tablesix List of contributorsx Forewordxv Carol Weissert Prefacexvii Jill Vickers Acknowledgmentsxx 1

Introduction to Handbook on Gender, Diversity and Federalism1 Jill Vickers, Joan Grace and Cheryl N. Collier

PART I

THEORETICAL AND COMPARATIVE APPROACHES

2

How can comparative studies of federations be gendered? Gendering inter-governmental relations Jill Vickers

16

3

Does federalism support policy innovation for children and families? Canada in comparative context Linda A. White

32

4

Federalism, gender equality and religious rights: Canada and Nigeria Peter (Jay) Smith

48

5

Federalism and women’s descriptive representation Daniel Stockemer and Michael J. Wigginton

63

6

Mapping the terrain: Gender in global governance and the federal option Judit Fabian

76

7

Comparing country-wide women’s organizations in Canada and the United States in the age of decentralization Cheryl N. Collier

PART II 8

91

THIRD-WAVE GENDER/FEDERALISM RESEARCH IN SOME ‘WESTERN’ FEDERATIONS

Federalism, courts and LGBTQ policy in Canada Miriam Smith

v

107

vi  Handbook on gender, diversity and federalism 9

Reproducing the masculine, neoliberal state: Canadian federalism doctrine and the judicial deregulation of reproductive technologies Kerri A. Froc

120

10

Trump’s ‘principles of economic mobility’ and Medicaid: Gender, race and federalism Melissa Haussman

135

11

Federalism and women’s equality rights campaigns in Canada Beverley Baines

149

12

The gendered territorial dynamics of the Spanish State of Autonomies Tània Verge and Alba Alonso

166

13

Regendering the federal bargain in Canada Joan Grace

180

14

Feminism and federalism in Australia: Pushing federalism beyond territory Kim Rubenstein

194

PART III THIRD-WAVE GENDER/FEDERALISM RESEARCH IN THE GLOBAL SOUTH: LATIN AMERICA, ASIA AND AFRICA LATIN AMERICA 15

The federal restriction of women’s rights: Argentina’s politics on abortion and contraception Debora Lopreite

212

16

National law and territorialized public policy goods: The violence against women law in Brazil Simone Bohn

227

17

Women’s policy agencies and federalism: INMUJERES in Mexico Caroline Beer

245

18

Devolution and the multilevel politics of gender in Pakistan Mariam Mufti

263

19

Gender, federalism and the state in India Carole Spary

279

20

The political economy of gender budgeting: Empirical evidence from India Lekha Chakraborty, Veena Nayyar and Komal Jain

294

21

Indian federalism and violence against women: A complex web of power relationships306 Catherine Viens and Priscyll Anctil Avoine

ASIA

Contents  vii 22

‘Nested newness’ and the engendering of regional autonomy: Women’s rights and equality in Hong Kong Susan J. Henders

321

AFRICA 23

#Bring Back Our Girls: Girls’ education and women’s security in northern Nigeria Plangsat Bitrus Dayil and Jill Vickers

338

Index351

Figures

3.1

Public expenditure on family benefits by type of expenditure, in percentage of gross domestic product, 2015 or latest available, select OECD countries

36

3.2

Enrolment rates for 3–5 year olds in pre-primary education or primary school, 2014 or latest available, select OECD countries

39

3.3

Public expenditure on primary, secondary and post-secondary nontertiary education as percentage of gross domestic product, 2013, select OECD countries

39

3.4

Relative income poverty rate (percentage) for the total population and for children (0–17 year olds), 2016 or latest available year, select OECD countries

42

12.1

Regional governments by party

169

15.1

IVE majority votes of deputies by province

223

15.2

IVE majority votes of senators by province

223

18.1

The three tiers of local government in 2001

271

20.1

Gender budget as a percentage of the total Indian budget

303

viii

Tables

2.1

Characteristics of three types of inter-governmental relations

21

2.2

Women’s representation and family law reform

27

3.1

Total allocations for regulated child care (millions unadjusted dollars, rounded) provinces/territories/Canada (1992–2015/16)

38

5.1

Bivariate relationship between federalism and women’s descriptive representation

69

5.2

Multivariate models measuring the effect of federalism and women’s descriptive representation

70

5.3

Indirect effects of federalism on women’s representation

71

5.4

Multivariate logistic models measuring the effect of federalism and the adoption of party quotas

72

8.1

Year sexual orientation added to provincial legislation by amendment or court ruling

111

8.2

Same-sex couples recognized in family law

112

12.1

Gender equality and LGBTI rights acts in Spain

170

12.2

The gendered implications of the Spanish States of Autonomies

176

15.1

Votes in the Lower Chamber of the National Congress by party

222

15.2

Votes in the Senate of the National Congress by party

222

16.1

Municipal-level state responses related to the prevention of violence against women

238

16.2

Special police stations for women (or DEAMs), 2006–14

238

17.1

Year each state adopted a women’s institute

252

20.1

Health, education and income components-wise GDI scores

298

20.2

Time spent in care economy by men and women in selected states of India (hours per week)

299

20.3

Time spent in unpaid care as a percentage of state domestic product by men and women in selected states of India

299

20.4

Fiscal marksmanship of gender budgeting: select ministries

303

ix

Contributors

Alba Alonso is Lecturer at the Department of Political Science and Sociology of the University of Santiago de Compostela, Spain. Her main research areas refer to gender and politics, territorial politics and public policies. Her work has been published in Gender and Politics, Politics and Governance, Social Politics, European Journal of Women’s Studies and European Political Science, and in collective books such as Institutionalizing Intersectionality? The Changing Nature of European Equality Regimes edited by Andrea Krizsan, Hege Skjeie and Judith Squires (2012). Priscyll Anctil Avoine is a PhD candidate in political science and feminist studies at the University of Quebec in Montreal for which she received the Vanier Scholarship. Her research interests are focused on the reintegration of women combatants, gender-based violence and feminist security studies. Her PhD research project centers on embodiment and emotions in the post-disarmament militancy of female ex-combatants in Colombia and she recently co-published the article ‘Misogyny in “Post-War” Afghanistan: The Changing Frames of Sexual and Gender-Based Violence’ (2018). Beverley Baines is Professor in the Faculty of Law, Queen’s University, Canada. Her research primarily focuses on women’s equality rights jurisprudence under the Canadian Charter of Rights and Freedoms. Caroline Beer is Professor of Political Science at the University of Vermont. Her research interests include democratization, federalism and gender in Latin America. Her research has been funded by the National Science Foundation and the Center for US-Mexican Studies at the University of California San Diego. Her book, Institutional Change and Electoral Competition in Mexico, was published in 2003. She has also published in journals such as Comparative Politics, American Political Science Review, Comparative Political Studies and International Studies Quarterly. Simone Bohn is Associate Professor of Political Science at York University. She co-edited Mothers in Public and Political Life and is currently working on a Social Sciences and Humanities Research Council-funded project on Brazil’s women’s policy agency. Her articles have been published in International Political Science Review, Latin American Research Review and Journal of Latin American Politics, among others. Lekha Chakraborty is Professor at the National Institute of Public Finance and Policy. She is also affiliated as Research Associate with the Levy Economics Institute of Bard College, New York. She is the pioneer economist in institutionalizing gender budgeting in India, with the chief economic advisor of the Ministry of Finance, Government of India in 2004. She is the recipient of the Infosys best PhD thesis award from Indian Institute of Science Bangalore. She is the author of Fiscal Consolidation, Budget Deficits and Macroeconomy (2016). Cheryl N. Collier is Associate Professor of Political Science at the University of Windsor. Her primary areas of research include comparative women’s movements, Canadian federal x

Contributors  xi and provincial child care and anti-violence against women policy, federalism, Ontario politics and most recently violence against women in politics. She has published on these topics in the Canadian Journal of Political Science, Politics and Gender and Social Politics. She is also co-editor (with Jonathan Malloy) of The Politics of Ontario (2017) which was a medalist for the 2017 Ontario Speaker’s Award. Plangsat Bitrus Dayil has extensive experience in teaching, research and consulting activities. She is presently Coordinator of the Centre for Gender and Women Studies and also Lecturer in the Department of Political Science, University of Jos. She participated in helping monitor the 2019 general elections for the Democracy and Development Analysis Centre. She also was part of the Partnership for African Social Governance Research project for the study of the #BringBackOurGirls Movement (Nigeria, 2017). She was a co-investigator on a multicountry research project on energy frontiers 2017–18. She is presently Co-Investigator for a comparative study of three major African city regions: Abuja (Nigeria), Tunis (Tunisia) and Cape Town (South Africa) in Young Women’s Engagement in Africa’s transport sector. Judit Fabian’s area of research is the idea of democratic global economic governance, which she is developing under the framework of inclusive global institutionalism. Her research has gained recognition by the political science community in Canada and internationally, being nominated and shortlisted for several awards and prizes. Judit recently completed a post-doctoral appointment at the School of Public Policy, University of Calgary, Canada and is presently Visiting Researcher at the Graduate School of Public and International Affairs, University of Ottawa. She earned her PhD in political science in 2015 at Carleton University. She has also received training at the European University Institute, Italy and studied at the University of Helsinki, Finland. Judit is a citizen of Canada, Hungary and the European Union. Kerri A. Froc is Assistant Professor in the Faculty of Law, University of New Brunswick, as well as a Trudeau and Vanier Scholar. Her research areas include theories of constitutional interpretation, access to justice, reproductive rights, rights of political representation and complex rights violations experienced by working women, poor women and racialized and Indigenous women. Joan Grace is Professor in the Department of Political Science at the University of Winnipeg in Manitoba, Canada. Joan’s research focuses on the institutional arrangements of state architectures in Canada analyzing how they promote or impede the achievement of women’s policy objectives. A scholar of feminist institutionalism, Joan has studied how institutional sites of the state, within bureaucracies, parliamentary committees and the House of Commons, have promoted women’s equality initiatives or have detracted from successful development and implementation. She has published articles in peer-reviewed journals including Parliamentary Affairs and the Manitoba Law Journal. Melissa Haussman is Professor of Political Science at Carleton University, Ottawa, Canada. She is the author, co-author or co-editor of six books, and various articles and book chapters on the issues of comparative politics and gender, and comparative reproductive rights policy. She has been a co-editor of the International Journal of Canadian Studies and sits on other editorial boards. She has also held leadership roles in the American and International Political Science Associations and the Association for Canadian Studies in the United States.

xii  Handbook on gender, diversity and federalism Susan J. Henders researches the politics of minority autonomy, especially in Asia and Europe. Her relevant books include Human Rights and the Arts: Essays on Global Asia (co-editor Lily Cho); Territoriality, Asymmetry, and Autonomy: Catalonia, Corsica, Hong Kong, and Tibet; and Democratization and Identity: Constituting Regimes and Ethnicity in East and South-East Asia. She also studies non-state diplomacies. Henders teaches at York University in Toronto, having completed graduate degrees at the Chinese University of Hong Kong and the University of Oxford. Komal Jain is a former research intern at the Indian National Institute of Public Finance and Policy. Debora Lopreite is Professor at the University of Buenos Aires (UBA), where she teaches political science, public policy and gender. She holds a PhD in public policy from Carleton University, an MA in public administration and a BA in political science, both from UBA. She has been a post-doctoral researcher at the University of Quebec, Montreal. Her work on welfare regimes, gender policies and institutions, with a focus on Argentina and Mexico, has appeared in several peer-reviewed journals and book chapters. Mariam Mufti is Assistant Professor of Comparative Politics at the University of Waterloo. She studies the politics of hybrid regimes, with a particular focus on the role of the military, political parties and identity in the processes of recruitment and selection of the political elite in Pakistan. She has co-edited Pakistan’s Political Parties: Surviving against All Odds (2020) and published articles in peer-reviewed journals including Politics and Governance and Comparative Politics as well as in several edited volumes. Veena Nayyar is Executive Director of Policy Foundation, a not-for-profit, independent organization in India conducting research and outreach in the areas of economic and social policy. Kim Rubenstein is Professor in the Faculty of Business, Government and Law and Co-Director of the 50/50 by 2030 Foundation at the University of Canberra. A graduate of the University of Melbourne and Harvard University, she is Australia’s leading expert on citizenship, both around its formal legal status and in law’s intersection with broader normative notions of citizenship as membership and participation. This has led to her scholarship around gender and public law, which includes her legal work and her oral history work around women lawyers’ contributions in the public sphere. She was the director of the Centre for International and Public Law at the Australian National University in 2006–15 and the inaugural convener of the Australian National University Gender Institute in 2011–12. She is a Fellow of the Australian Academy of Law and the Australia Academy of Social Sciences. Miriam Smith is Professor in the Department of Social Science, York University. Her areas of interest are Canadian and comparative politics, social movements and LGBTQ legal mobilization. She has authored a number of works, including Political Institutions and Lesbian and Gay Rights in the United States and Canada (2008), Group Politics and Social Movements in Canada (edited) (2014) and A Civil Society? Collective Actors in Canadian Political Life (2018). Peter (Jay) Smith is Professor Emeritus of Political Science at Athabasca University, Alberta, Canada. His current research interests are in new communications technologies, globalization,

Contributors  xiii religion, trade politics, transnational networks, democracy and citizenship. He is the co-editor with Sabine Dreher of Religious Activism in the Global Economy: Promoting, Reforming or Resisting Neoliberal Globalization (2016) and co-editor of The Role of Religion in Struggles for Global Justice (2018), with Katharina Glaab, Claudia Baumgart-Ochse and Elizabeth Smythe. Carole Spary is Associate Professor at the School of Politics and International Relations and Deputy Director of the Asia Research Institute, both at the University of Nottingham, UK. Her recent publications include Gender, Development, and the State in India (2019) and Performing Representation: Women Members in the Indian Parliament, with Shirin M. Rai (2019). She held previous positions at the Universities of York and Warwick, after completing her PhD at the University of Bristol. Daniel Stockemer is Full Professor at the School of Political Studies at the University of Ottawa. Daniel’s research interests are in political representation and populism. He has published several books and more than 100 articles, which, among others, appear in the European Journal of Political Research, Political Behavior and Governance. Tània Verge is Associate Professor at the Department of Political and Social Sciences, Universitat Pompeu Fabra, Barcelona, Spain. Her research interests lie in gender and politics, political parties and political representation. Her publications have appeared in Politics and Gender, Publius: Journal of Federalism, Party Politics, West European Politics, Government and Opposition, European Journal of Political Research, Political Research Quarterly, Journal of Women Politics and Policy and European Journal of Women’s Studies. Jill Vickers, Fellow of the Royal Society of Canada, is Distinguished Research Professor and Emeritus Chancellor’s Professor in Political Science at Carleton University in Ottawa. She is co-/author of ten books and over 50 articles about how gender, race and nation interact with state architectures, notably federalism. She also served as president of the Canadian Association of University Professors and of the Canadian Political Science Association. She also has been active in the Canadian women’s movements, notably as president of the Canadian Research Institute for the Advancement of Women and as Parliamentarian of the National Action Committee on the Status of Women. Catherine Viens is a PhD candidate in political science at University of Quebec in Montreal. Her research interests are in political ecology, Indian federalism and local governance. Her doctoral research aims at analyzing the potential of local governments to empower local communities in the Indian federal system, based on socio-ecological struggles. She recently published a chapter, ‘Fédéralisme et langues autochtones: les risques d’une assimilation tranquille’ in the book Ré-imaginer le Canada, vers un État multinational? (2019). Linda A. White is Professor of Political Science at the Munk School of Global Affairs and Public Policy at the University of Toronto. Areas of research include comparative welfare states, comparative social and family policy, particularly education, early childhood education and care and maternity and parental leave; gender and public policy; ideas, norms and public policy development; and federalism, law and public policy. She has published extensively in journals such as Comparative Political Studies, Governance, Journal of European Public Policy, Publius and Social Politics. She is the author of Constructing Policy Change: Early

xiv  Handbook on gender, diversity and federalism Childhood Education and Care in Liberal Welfare States (2017), among other co-authored and co-edited books. Michael J. Wigginton is a PhD candidate in the School of Political Studies at the University of Ottawa. His research areas are elections, political representation and Canadian politics. Michael has published in PS: Political Science and Politics, Scientometrics and the International Journal of Biometerology, among others.

Foreword

Carol Weissert1 Scholarship about feminism and federalism is alive and well, and this is a very good thing. This Handbook on Gender, Diversity and Federalism provides evidence that smart scholars are asking and answering interesting questions about feminism and federalism. But much more remains to be done. The 23 chapters in this book address a third generation of feminism and federalism studies. Unlike earlier generations that dealt with traditional federations, asking questions such as why some countries adopt women’s policies such as quotas and prevention of sexual abuse, work in this third-generation compilation is more ambitious in terms of definitions of federalism, countries studied, intersectionality and how gender effects change in inter-governmental relations. The importance here is that it is not just traditional federations and not just traditional questions. This work expands the boundaries of federalism and its impact on women. I very much like the expansion. Although long-time federalists (like me) have been content with the diversity of recognized federations (and their institutions), it is hard to deny the vibrancy of recognizing quasi-federations which may be partial or even unstable federations, moving back and forth from democratic to authoritarian governance forms. Decentralization – a research mainstay for traditional federalism scholars – takes on a new feel in this volume in the examination of how decentralization affects aspects of gender regimes such as marriage, adultery and divorce. Also welcome is the idea of not just asking how a federation compares to a matched non-federation in adopting women’s issues such as quotas but with seeking more broadly to develop new approaches and drawing from other disciplines for alternative terminology. For example, Vickers uses the term ‘federalization’ which she defines as a way to recognize countries that aren’t formal federations but use some federal arrangements to accommodate diversity and manage conflict. Most federalism literature doesn’t deal with decolonization and democratization or its opposite military or authoritarian governance. This is important over time as sometimes federations in the global south experience both democratization and authoritarianism at different times. This recognition of the dynamic nature of federalism rather than the more usual static approach is refreshing. Democratization relates to gender in ways I had not thought about – including declining fertility rates and women’s economic circumstances and political empowerment. I have long advocated expanding the scope of federalism research from the focus on institutions to a more diverse research focus on actor-centered and mixed behavioral approaches. I can also add intersectionality to that list. Several of the chapters in this book deal with how gender intersects with race, class and even religious minority identities in important and meaningful ways. But of course, institutions remain important to political scientists and happily are well covered in this book. While federalism scholars are beginning to embrace the multilevel governance (MLG) notion, authors in this book highlight why recognition of MLG is important, especially in non-traditional federations or quasi-federations. Informal institutions are recognized in chapters in this book in ways that continue to expand our thinking about institutions. Also of interest are chapters about how gender and federalism affect policy issues such as xv

xvi  Handbook on gender, diversity and federalism health and social policy, protection from violence, Indigenous reconciliation and LGBTQ rights. As expected in any such path-breaking treatment, there remain issues that need to be resolved, questions that need to be answered. The fourth-wave research agenda proposed here includes a better understanding of MLG and disadvantaged/marginalized groups in society, feminist interests that don’t align, and campaign narratives and how they play out in feminist and other identities. A closer look at gender, diversity and federalism in the Global South is clearly an important research agenda, and one that, along with this work, will help us better understand federalism and feminism now and in the future.

NOTE 1.

LeRoy Collins Eminent Scolar and Professor of Political Science, Florida State University.

Preface

Jill Vickers Why is this Handbook important to both federalism scholars and feminist political scientists (FPS)? Its first objective is to introduce the rich and fast-growing literature about how state architectures interact with various categories of difference, ‘gender’ but also ‘race’, faith, ethnic or sexual minorities, etc. The Handbook’s second objective is to encourage both federalism scholars and FPS to explore how such categories interact and how they affect and are affected by colonialism, decolonization, military or authoritarian governments and their aftermaths. A third objective is to build theoretical bridges between research about older, ‘Western’ federations established before democratization and about post-colonial federations in the global south, in many of which federalism was imposed by the colonial power. The Handbook is important because it highlights new, insightful research about relations between territorial and non-territorial differences and about how federations manage conflicts that result from various forms of territorial pluralism. This makes the Handbook a ‘must-read’ not least because it reveals how state architectures shape how marginalized groups – including women’s movements – organize politically in federations and engage with central and regional governments. Earlier waves of researchers focused on ‘gender and federalism’, but many contributors to this Handbook use expanded categories of ‘difference’ and new research about federations in the global south. Some employ intersectional approaches that show how multiple, intersecting categories of difference affect policy development. Few contributors pay attention to the debates about the origins of intersectionality (Hancock 2016), but instead use intersectional approaches to explore conflicts between group rights in federations (see Peter (Jay) Smith’s exploration of conflicts between the rights of women and religious minorities in Canada and Nigeria in Chapter 4). Therefore, use of an ‘intersectional lens’ can reveal much about conflict management, especially in post-colonial federations. Those using intersectional approaches usually focus on local issues in federations in the global north (Patil 2013, 853), but some contributors theorize how systems of ‘race’, class, ethnicity, nation, sexuality and especially ‘gender’ serve as ‘mutually constructing features of social organization’ (Hancock 2016, 32) and focus on post-colonial federations in the global south. By observing how categories of difference interact in federations, they engage with diversity in meaningful ways. Some federalism scholars (e.g. Miller 2008; Vickers and Isaac 2012) show how state architectures shape marginalized groups’ representation, affect their opportunities for democratic participation and structure the environments within which they make policies (Miller 2008, vi). Traditionally, studies of federalism have focused on ethnicity and language, but scholars of federalism and race (e.g. Miller 2008) have led some contributors to expand the categories of difference studied and to include the effects of previous colonialism, slavery and military or authoritarian rule. Studies of federalism are multidisciplinary but the participating disciplines have biases that may obscure how state architectures affect categories of difference. One such bias is methodological nationalism – the belief that the unitary nation-state is the modern world’s natural political form or the proper ‘container’ for modern politics and so a ‘given’ in political, legal and policy analysis. This led most political scientists – including FPS – to ignore state architectures, regional governments and interactions in studying categories of difference xvii

xviii  Handbook on gender, diversity and federalism including ‘gender’. But some Handbook contributors show how ‘gender’ and other differences can be incorporated into both federalism studies and comparative politics. They also want to persuade FPS and feminist legal scholars of the value of institutionalism, especially feminist institutionalism in theorizing interactions among colonialism, development, federalization and democratization. Another problem is the belief that federalism studies are a minor academic specialty given the few federations compared to unitary nation-states. But Watts (2008, xii) established that at least 40 per cent of the world’s population live in federations, while many more experience multilevel governance and various ‘federal arrangements’. Globally, seven of the world’s eight largest countries are federations and federalization is associated with struggles for democracy in ‘hot-spots’ like Hong Kong, Catalonia, Kashmir, Venezuela and Brazil. But the lack of accessible data about regional governments is another barrier. The editors hope the Handbook’s demonstration of the importance of regional governments in establishing full citizenship for women and other marginalized groups will persuade agencies like the Inter-Parliamentary Union and United Nations Women to collect systematic regional information for their databases. Nonetheless, the Handbook is a ‘must-read’ even in the absence of such data, because many contributions reveal how colonialism, decolonization, military or authoritarian governance and decentralization affect interactions between federalization and democratization. While most social scientists and political activists assume democratization and decentralization have positive effects for women’s rights and citizenship, recent studies of their effects in Indonesia suggest more complex interactions and outcomes. Nur Hidayah (2019), for example, found that in largely Muslim regions of Indonesia, informal federalization and democratization legitimized regulations that reduced women’s rights and citizenship and constrained their lives. Future research should establish if such outcomes result from informal federalization or from federal decentralization generally. Most theoretical approaches treat federations as if they were unitary states, assuming that their central governments can always ‘trump’ their regional counterparts, thereby making them irrelevant. But regional governments significantly increase the number of legislatures in which decisions are made and the number of offices to which women and others in categories of difference can be elected or appointed. As more countries devolve powers to regional governments or adopt even partial ‘federal arrangements’, federalism’s importance increases. Moreover, ‘federalism’ isn’t static, but changes as power is devolved to regional governments or with the neoliberal ‘offloading’ of responsibilities to non-government actors. Further, while ‘what is within the scope of “the national” has enlarged over time’ (Irving 2008, 68), ‘traditional female spheres of education, health, welfare and family matters are far less commonly represented, if at all, in “the… national”’ (Vickers 2017, 167). This makes regional policy-making especially important for women and other marginalized and diverse groups. In earlier research, a key theme was ‘how… political architecture… affected women’s citizenship and whether women were active participants in its design’ (Haussman et al. 2010, 17). By expanding the meanings of ‘diversity’, contributors to this Handbook relate them to different patterns of federalization and democratization. Indeed, the extensive theorizing about such relations is its most valuable contribution to federalism scholarship and feminist political and legal studies. The Handbook’s inclusion of research about both post-colonial and Western federations makes it possible to understand how the effects of federal architectures change over time and differ according to context.

Preface  xix

REFERENCES Hancock, Ange-Marie (2016), Intersectionality: An Intellectual History, New York: Oxford University Press. Haussman, Melissa, Marian Sawer and Jill Vickers (2010), Federalism, Feminism and Multilevel Governance, Farnham: Ashgate. Hidayah, Nur (2019), ‘Islamic Law and Women’s Rights in Indonesia: A Case of Regional Sharia Legislation’, AHKAM, 19 (1), 19–38. Irving, Helen (2008), Gender and the Constitution: Equity and Agency in Comparative Constitutional Design, New York: Cambridge University Press. Miller, Lisa (2008), The Perils of Federalism: Race, Poverty and the Politics of Crime Control, New York: Oxford University Press. Patil, Vrushali (2013), ‘From Patriarchy to Intersectionality: A Transnational Assessment of How Far We’ve Really Come’, Signs: Journal of Women in Culture and Society, 38 (4), 847–67. Vickers, Jill (2017), ‘Gendering Federal Constitutions’, in Helen Irving (ed.), Constitutions and Gender, Cheltenham, UK and Northampton, MA, USA: Edward Elgar Publishing, 163–94. Vickers, Jill and Annette Isaac (2012), The Politics of Race: Canada, the United States and Australia, 2nd ed., Toronto, Buffalo: University of Toronto Press. Watts, Ronald L. (2008), Preface, in Richard P. Chaykowski and Robert Hickey (eds), Comparing Federal Systems, 3rd ed., Kingston: Institute of Intergovernmental Relations, Queen’s University, xiii.

Acknowledgments

The editors wish to thank research assistant Justin Grainger for help with technical editing and pre-submission proofreading. We also wish to thank the University of Windsor for their financial support of Justin for his work on this project. The editors used a round-robin peer-reviewing process in which each contributor reviewed another contributor’s early text. Our thanks to the contributors for their diligent and thoughtful reviews (as well as for their original contributions to this Handbook). We also wish to thank Dr Joanna Everitt at the University of New Brunswick for providing additional blind reviewing when our process didn’t produce a suitable reviewer. The editors also thank Daniel Mather and the editing staff at Edward Elgar Publishing for their assistance throughout the project.

xx

1. Introduction to Handbook on Gender, Diversity and Federalism Jill Vickers, Joan Grace and Cheryl N. Collier

In this Handbook a number of international gender scholars explore the third ‘wave’ of research about gender, diversity and federalism. It focuses on how institutions, ideas and practices affect, and are affected by, gender regimes as well as territorially and non-territorially organized diversities, including minority ethnicities, ‘race’, religious and sexual minorities. In recent decades, scholarship examining the intersections between gender, diversity and state architectures in federations progressed through several earlier ‘waves’. In the first wave, starting in the 1980s, feminist political scientists and legal scholars began exploring if federal systems were good or bad for women in reference to their ability to make claims against the state, usually coming to the unsatisfying conclusion that ‘it depends’. Most of these early inquiries referred to older federations, such as Australia and Canada. A second wave of gender/federalism research started around 2000. Building on earlier inquiries, feminist scholars of federalism explored if and how federal systems were gendered and what this means for women’s advocacy, organization and citizenship. But they often failed to recognize the changing natures of federations and how actors such as women’s movements can reshape architectural arrangements and institutional opportunities. Contributors to this Handbook use various approaches to study how gender and diversity interact with different manifestations of federalism, drawing on earlier texts about how organized women increased their political participation, representation and ability to hold governments accountable. Drawing from federalism studies and ‘women, gender and politics’ research, Handbook contributors explore how state architectures and processes, including inter-governmental relations (IGR), interact with activists’ pursuit of security (protection from violence), autonomy (access to safe abortion, reliable contraception, child care, education and occupation) and freedom (gender and LGBTQ rights and human rights). Other contributors explore how gender and diversity facets of major issues such as health care affect benefits for minority ‘races’ or ethnicities and issues of conflict management, including between religious and gender rights. While this collection is not a complete survey of the gender, federalism and diversity field, the diverse contributions provide a good overview of its current state. Some Handbook chapters study how federalism and gender regimes1 interact and conceptualize ‘federalism’ both as a philosophy of governance and a way of organizing a state with multilevel governance (MLG). Most contributors build on the theoretical insights and empirical findings from earlier research waves including approaches in which ‘gender’ is the main analytical variable. Others study relations between federalism and ‘diversity’ generally, including gender, ‘race’, sexual orientation, ethnic and religious minorities. About a third of the chapters explore gender and diversity in federations in the global south (Latin America, Asia, Africa), revealing important lessons about differences from ‘western’ federations (Europe, North America, Australia) that often were the sole subject of earlier research waves. Consequently, the Handbook offers new 1

2  Handbook on gender, diversity and federalism insights into interactions between gender or diversity and de/colonization, federalization, de/ centralization and democratization. Some chapters provide insights into how federalization2 and democratization reflect colonial origins and experiences with the subsequent effects of decolonization and military or authoritarian rule which results in overcentralized institutions. The Handbook’s development of third-‘wave’ gender/federalism research builds on the issues, goals and approaches drawn from earlier waves. Some chapters explore how federal structures and gender regimes interact in western federations like the United States (US) and how organized women experience federalization when they mobilize for gender equality. Early gender/federalism research explored women’s politics in ‘old’ federations shaped by their founders’ choices of federal governance. Some also worked to ‘hold together’ stressed unitary countries like Belgium; or compound polities like the United Kingdom in which power has been devolved to regional bodies. There also are ‘hold together’ cases like Spain in which Catalonia provides new insights about how national minority and gender activists interact with MLG. Most gender scholars, like mainstream federalism researchers, believe that only democratic federations are authentic and, therefore, exclude socialist federations (notably the Soviet Union and Yugoslavia) and federations under military or authoritarian rule. But in some such cases, MLG plays an important role in democratizing the polity with regional governments serving as platforms for competing parties to challenge the dominant party thereby sometimes ending authoritarian rule and promoting democratic change. Third-wave gender/federalism research is also beginning to explore intersectional diversity beyond ‘gender’ and is including ‘race’, ethnicity, language, religion and minority sexual status in its analyses. New themes are emerging from research about federations in the global south, notably about the impact of de/ colonization and democratization on gender regimes following authoritarian rule. This introduction compares static and dynamic approaches to gender/diversity interactions with federalization and explores how de/colonization has affected democratization. Dynamic approaches also are conceptualized as adaptive or evolutionary. As mentioned, early ‘waves’ of gender/federalism research were limited to studies of western countries as gender scholars tried to understand if federal arrangements had positive or negative outcomes for women seeking equality rights. But they generally ignored the impact of de/colonization or democratization, although many western federations began as British colonies. Nonetheless, the elites shaping these older federations chose federalism which, by contrast, was usually imposed on federations in the global south. Moreover, most early research conceptualized federalism as a static system of powers framed within a rigid constitution. This captured bargains to which founding elites agreed and encapsulated constitutionally defined competencies in static snapshots. Because gender scholars must promote change to achieve equality and resist formal, static structures they tend to use concepts like informal institutions to promote change. Consequently, third-wave research3 focuses on the dynamic aspects of federalization, including de/centralization. This is especially evident with gender/federalism scholars studying the global south, who more often explore how these dynamic aspects of federalization, de/ colonization and democratization affect gender regimes. Third-wave federalism researchers are starting to pay attention to other aspects of diversity, many of which are explored in this Handbook. Gender and politics scholars have tended to assume that organized women seeking equality always and ideally relate to unitary states, ignoring the impact of state architectures, notably federal arrangements. With 25+ federations, including the world’s largest and most powerful states, there is a disconnect between the unitary state bias of the earlier ‘gender and politics’

Introduction  3 field and the increased growth of states with MLG and those utilizing ‘federal arrangements’. Some contributors to this volume address this disconnect illustrating the importance of research about the dynamic aspects of federalization, especially in the global south given the impact of colonization. Federalization also occurs in countries that aren’t formal federations but use some ‘federal arrangements’ to accommodate diversity and manage conflict. Stockemer and Wigginton’s chapter compares the effects of a full federation on women’s representation compared to the effects of partial federal arrangements in unitary states like China. Henders’ chapter shows how having some federal arrangements in Hong Kong affects women’s representation and participation. Vickers’ chapter explores new IGR typologies that facilitate comparisons of countries with both full and partial federal arrangements. New issues being explored by Handbook contributors also include those drawn from both the ‘gender and politics’ and the ‘gender/federalism’ literatures, often investigating aspects of ‘diversity’ other than gender. To date many aspects of diversity have been under-represented, including the question of how federalism interacts with ‘race’ (for exceptions see Miller 2008; Vickers and Isaac 2012). For example, the growing literature about the disappearance and death of Indigenous women in federations deserves its own volume and is not fully addressed here. Chakraborty, Nayyar and Jain’s chapter, however, discusses gender budgeting as a policy innovation with the potential to transcend various diversities in India. Spary’s chapter examines how the ‘federalism advantage’ may benefit diverse women, especially in federations in the global south. Further, Haussman’s contribution about how Trump’s ‘Principles of Economic Mobility’ affect women and other Medicaid recipients including those of minority ‘races’ highlights some intersectional aspects of ‘gender’/‘race’ interactions. Several chapters explore interactions between federalism and LGBTQ rights and conflicts between ‘gender’ and religious rights. Miriam Smith’s chapter offers in-depth research about US campaigns for LGBTQ rights and builds on her second-wave research that compared the Canadian and US federations. It showed how activists used Canada’s distinct federal system to obtain LGBTQ rights before the US – notably same-sex marriage rights. Peter (Jay) Smith’s chapter exploring conflict between gender and religious rights is especially innovative because it compares federations similar in type but distant in location – Canada/Quebec and Nigeria. About a third of the Handbook’s chapters explore gender politics in federations in the global south that experienced post-colonial and military or authoritarian rule. The chapter by Dayil and Vickers, for example, focuses on how the post-colonial Nigerian government has managed (or mismanaged) the provision of security for women and girls after long periods of military rule and during periods of democratization. Similarly, Bohn’s and Beer’s chapters explore the limited ability of the Brazilian and Mexican states to provide security for women and girls. But Anctil Avoine and Viens’ chapter suggests that federal structures may help solve the problems of gender-based violence in India. The effects of ‘de/colonization’ need conceptualization and definition while using a gender/federalism lens to understand democratization in the global south which gender scholars usually attribute to economic development. A key question is: does federalism reproduce power structures that remain inherently colonial and gendered? The research for these chapters shows that one outcome of colonial and military or authoritarian rule in federations is the overcentralization of power in central governments – a legacy shared by many federations in the global south. Third-wave ‘gender/federalism’ research explores diverse patterns of de/centralization. In most western federations, the dominant pattern is centralization; however, multinational federations like Canada tend toward de/centralization and adopt ‘opting-out’ mechanisms in their conflict-management strategies.

4  Handbook on gender, diversity and federalism Federations in the global south experienced de/colonization and military or authoritarian governance alternating with democratization and decentralization. But Mufti’s chapter about constitutional decentralization in Pakistan suggests that the reserved seats designed to increase women’s representation in local government also reflect elites’ desires to undercut regional competitors as much as to advance democratization. Some third-wave researchers explore the dynamic processes involved in federal decentralization theorizing that its main drivers are ‘modernization’ – notably, the socio-economic and socio-cultural trends that affect regional units’ autonomy and the production of diverse outcomes across policy fields. This third-wave research also focuses on interactions between federalization and democratization across contexts. It shows that federal arrangements in reality aren’t static and formal constitutional amendments aren’t necessarily needed to achieve change.

1.1

EVOLUTIONARY APPROACHES AND ADAPTIVE FEDERALISM

Early scholars in the first two waves of gender/federalism research imagined the division of powers as ‘layer cakes’ with rigidly assigned competencies framed in hard-to-change constitutional categories. But many third-wave gender/federalism scholars use the concept of informal institutions to make such static approaches more dynamic, as Grace does in her chapter in this Handbook. A more dynamic approach was needed by organized women who focused on change to promote gender equality. This move toward a more dynamic approach started in the second wave of research but is dominant in the third wave. Arguably, the greater presence of more dynamic third-wave approaches is the most significant difference typified by increased comparisons that include federations in the global south. Scholars like Máiz et al. (2018) reject traditional approaches in part because they are static, but also because they are reductionist; that is, preoccupied with legal ‘closure’ and keen to impose a ‘ceiling’ on decentralization. Advocates of more dynamic approaches maintain that a ‘robust federation is flexible, not rigid’ (Bednar 2008, 15). Vickers’ chapter summarizes the value of more dynamic approaches drawing on Elinor Ostrom’s theory of federations as polycentric. ‘Adaptive’ or ‘evolutionist’ approaches conceptualize federations as ‘indeterminate and contingent political processes, rather than structures crystallized once and for all’ (Máiz et al. 2018, 498). Further, they see a federation as ‘a complex adaptive system… a political system endowed with a… capacity for experimentation and variation in time and place’ (Máiz et al. 2018, 498). Federal arrangements involve ‘a complex and changing set of rules, laws, values and behaviours… constituting an interaction which, from an evolutive perspective, prevents conceptions of a federal system through the ontological fallacy of the simple sum of its constituent parts’ (Máiz et al. 2018, 497). When federations in the global south are included in comparisons, they take different forms and use a variety of designs, mechanisms and practices (Watts 2000) to make them adaptive. Evolutionary approaches conceptualize federalization as a dynamic process proceeding through gradual institutional change which creates systems with varying degrees of flexibility and ambiguity. But federalization may be partial as when unitary states borrow federal mechanisms to help manage conflicts resulting from territorially manifested diversity. But politics, negotiations, violent interactions and even civil wars also can be aspects of federalization especially when imposed by a departing colonial power.

Introduction  5 In Spain, most discussions of federalism embrace a dominant static, reductionist discourse as outlined in the Spanish Socialist Workers’ Party’s (PSOE’s) Declaración de Granada (2013) which features a rigid structural vision of a federation with an unchanging distribution of competences and limited decentralization. Máiz et al. (2018, 497) borrow the concept of adaptive federalism (Bednar 2009; 2011) to signify the resilience of federations and their ability to ‘address diverse circumstances, changes or crises’ which they conceptualize as a ‘stratified and over-lapping set of rules, laws and actors that, the product of a continuous evolutionary progress, is never completely sutured’. Moreover, evolutionary approaches offer dynamic perspectives open to both change and contingency.

1.2

APPROACHES TO DE/CENTRALIZATION

The most common approach to de/centralization theorizes several socio-economic and socio-cultural drivers of ‘modernization’ including technological change, increased mobility and market integration, all of which are thought to centralize government. International rights treaties also increase centralization, as do increases in citizens’ expectations about governments’ roles. In particular, citizens’ demands for uniform welfare services across the country also are thought to promote centralization. Another perspective is that the distribution of powers in federations presses towards centralization. But while the mainstream literature assumes a common trajectory toward centralization there are exceptions, like Canada, in which decentralization prevails. Trajectories toward de/centralization vary according to the type of federation involved: for example, mono-national federations are more likely to follow the centralization trajectory; whereas multinational federations like Canada are more likely to pursue decentralization (see chapters by Grace and Vickers). Nonetheless, some apparently multinational federations like Switzerland that manage to forge a common national identity also follow the trajectory for centralization just like their mono-national counterparts. However, both levels of centralization and decentralization also can be affected by partisan variables; for example, older ‘western’ federations with right-wing regimes are more predisposed to decentralization than those with left-wing governments (see Collier’s chapter). One hypothesis about what drives dynamic centralization is that the scope of government in old federations increased during the nineteenth and twentieth centuries because of changes in citizens’ expectations of their governments. But for many federations in the global south, de/ colonization and military or authoritarian rule created different trajectories. Colonial power, de/colonization, military or authoritarian rule all involved highly centralized governments that conflated democratization and decentralization rather than ‘modernization’ theories as developed in western federations in the nineteenth and twentieth centuries. However, to date there has been little research about how such de/centralization affects gender regimes. Observing the impact of decentralization on post-colonial, multinational federations shows the importance of including experiences regulated by family law, in analyzing de/centralization’s impact, notably marriage, adultery and divorce. Moreover, this is true for both older western federations and newer federations in the global south (see Rubenstein’s chapter). As an internal subject nation, Catalonia differs from polities that were former colonies, however, under Franco’s rule, it was subject to military or authoritarian rule from Madrid. The result was a regional state whose elites are keen to be part of a decentralized federation or to secede with their own central state. Australia and Canada both drew together groups

6  Handbook on gender, diversity and federalism of colonies whose leaders chose to form federations. This was somewhat in imitation of the US which also brought former British colonies together; but while the American colonies rebelled and gained their independence through war, Canada and Australia gained home rule without war while also choosing to be federations. Both federal state structures and the new US congressional form of government formed a template imitated by some other newly independent states, especially in Latin America. So, while these older federations were all made up of former colonies, federalism was a choice and not imposed on them. But except in Australia, women were excluded from the public sphere for some time after independence (see Rubenstein’s chapter). By contrast, the newer British colonies in Asia and Africa experienced federalism as alien and imposed. Nationalists resisted federalism but ultimately it was accepted as part of the price of independence. So, federalism wasn’t ‘a colonial legacy in India, Pakistan or Malaysia… [where] nationalists4 seeking independence rejected plans based on federalism’ (Bhattacharyya 2010, 21). There was no pre-colonial tradition of federalism ‘as a political principle of governance’ in these countries. So, ‘the development of federalism… remained enmeshed with colonialism, anti-colonial nationalist movements and post-colonial experiments with democracy and nation-building’ (Bhattacharyya 2010, 21). The three original Asian federations and Nigeria have these things in common: federalism was imposed on them by Britain as a method of effective political control; they also are very diverse polities with high levels of ethnic conflict requiring special methods of conflict management. For example, both India and Nigeria have large Muslim minorities, and both Nigeria and Pakistan experienced long periods of military rule with highly centralized state powers tested by partition, secession or civil war. In the post-colonial period, revised forms of federalism became linked with democracy, most consistently in India but formally and more haltingly in Pakistan, Malaysia5 and Nigeria. According to Bhattacharyya (2010, 21), ‘this… made all the difference in the success or failures of federalism in these countries’. The failures of ‘socialist federations’ (notably, the Soviet Union and Yugoslavia) supported the western idea that only democracies are authentic federations – and vice versa. However, the ethnically diverse Russian federation involves a flawed, but not liberal democracy which is not explored in this Handbook.6 Therefore, it is important to examine relations between federalization and democratization after military, authoritarian or socialist governments have been in power. Latin American federations (Argentina, Brazil, Mexico, Venezuela) were formed early and were influenced by US federalism. Their long periods of military or authoritarian rule shaped each federation’s institutions, ideas and practices, delaying democratization7 and offering no opportunity for women’s citizenship.

1.3

GENDER, FEDERALIZATION AND DEMOCRATIZATION

Most early-wave research assumes that federations are liberal democracies, but pays little attention to the processes of democratization or federalization. This results in the exclusion of non-democratic federations from comparisons, despite the important role federal structures play in transitions from military or authoritarian regimes to democracies. Although ‘military rule is antithetical to the concept of federalism’ (Seun Akin Yemi cited in Bhattacharyya 2010, 21), formally they often coexist. Moreover, transitions between military or authoritarian governments and democracies are more fluid and occur over longer periods of time than is assumed by classic federalism theory. Failure to consider the dynamics of emerging feder-

Introduction  7 ations results in them being considered purely the product of founders’ wills illustrated in constitutions. But instead of perceiving change as always occurring formally, ‘evolutionary’ approaches conceptualize more subtle, dynamic and informal mechanisms that ‘strategically leave open conflictive questions’ (Máiz et al. 2018, 499). This section explores how gender and diversity relate to democratization and federalization. Democratization involves processes through which authoritarian polities are transformed into democracies, including conditions needed for transitions from the breakup of empires, the liberation of colonies and democracy’s deepening through the expansion of citizenship. How are gender regimes affected by interactions between democratization and federalization? In a study of 140 countries over three decades, Udi Sommer (2018) explores relations between democracy and ‘gender’ conceptualized in terms of demography. Most research on how demography and democracy relate focuses on male political behavior, notably how large cohorts of young men facilitate violent mobilizations (see Dayil and Vickers’ chapter). By contrast, Sommer theorizes that declines in fertility rates correlate with democratization, but previously there was little systematic study about how such changes affect democratization. Research on relations between gender and democratization focuses on increases in women’s life expectancy, declining rates of infant mortality (Przeworski et al. 2000) and declining fertility rates. Sommer theorizes four mechanisms that mediate how declining fertility rates affect democracy: 1) changes in family structure; 2) changes in women’s economic circumstances; 3) women’s increased political empowerment; and 4) land policy with better outcomes for women. Since World War II, there have been several significant demographic transitions: a global decline in average fertility from 5.05 in 1950 to 2.49 in 2015; and in the less developed countries, an average decline from 6.22 in 1950 to 2.62 in 2015 (Sommer 2018). When controlled for by the traditional predictors of democracy, Sommer finds ‘a highly significant’ and ‘substantively meaningful’ statistical relationship between declining fertility rates and the development of democracy. In countries with high fertility rates, fewer women participate in politics, especially in leadership positions. Lower fertility rates mean women no longer need so many children as insurance for their old age, are likely to have their first child later and so have more time for education. More egalitarian family structures result, creating time and opportunities for women to participate in politics, organize around issues that matter to them and undertake leadership roles. The term federalization originated with legal scholars who used it to refer to the growth of federal jurisdiction over a field of law. But in her research into how ‘race’ interacts with federalism, Lisa Miller (2008, 201, note 8) explains that: ‘I use the term [federalization] more broadly… because it provides a valuable framework for research across a range of policy issues’ (see also Vickers and Isaac 2012). Other gender/federalism scholars use the term to frame the process of founding federal institutions, developing them and federal ideas and practices. How did democratization and federalization affect gender regimes? Most political theorists assume the formation of unitary nation-states more or less naturally followed decolonization and the breakup of empires. But about 40 per cent of the world’s population lives in federations and democratization may precede or follow federalization. Especially important is what happens in federations during transitions from military or authoritarian regimes to democratization: for example, between the Mexican Revolution (1810) and when democratization began (2000). The federation was ruled by a series of authoritarian regimes making its government more centralized than any other federation (Beer 2017, 2). Democratization initi-

8  Handbook on gender, diversity and federalism ated decentralization and often also involved transitions from single- to multi-party elections, MLG and deepened democratic culture. The main question that preoccupied western gender scholars of the early waves of research was, would ‘federalizing’ issues across legislative venues enhance or diminish democracy? In fact, federal arrangements facilitated democracy on a large scale for the first time; while the previously largest (territorial) polities were empires that didn’t facilitate democracy. Gender scholars now ask insightful questions about the impact of federalization on women’s political participation. Most unitary polities are organized in a hierarchical pyramid with levels of government based on more or less authority; so too are federations that are overcentralized because of colonial, military or authoritarian rule. But other federations are polycentric; that is they lack a single center, as Vickers argues in her chapter on IGR. So, despite the fact that there are just roughly 25 federations globally (depending on how strictly ‘federation’ is defined), many have very large populations. Indeed, seven of the world’s eight (territorially) largest countries are federations. Federal arrangements can be used by territorially concentrated minorities to achieve meaningful autonomy within formally unitary polities. Henders’ chapter about Hong Kong’s relations within China explores how the ‘one country, two systems’ arrangement affects women’s rights and participation. Therefore, there are cases with federal arrangements within unitary states with unique impacts on women’s political representation and advocacy opportunities. Further, in some otherwise democratic federations such as Mexico, there may be one or several authoritarian regional states. Relations between gender regimes and democratization depend on the age and type of the federation. In ‘old’ federations founded in the late eighteenth or nineteenth centuries, women were viewed mainly as private dependents, not as citizens (Ritter 2006). Moreover, allocations of legislative powers generally followed an imposed public/private split between the central governments (public) and their regional (private) counterparts. In the US, for example, women weren’t considered eligible for the protections of the Bill of Rights or the Fourteenth Amendment (Ritter 2006) until they became active in the public sphere and were considered public persons. Instead, their protection was considered a private matter, with the state not expected to protect them. The first case in which women acted as, and were considered, public persons and full citizens was when Australia federated in 1902. A feminist founder Rose Scott (Allen 1994) expressed concern over the private/public split of legislative power which assigned family law to the regional states but virtually no powers over welfare issues to the central government. Indeed, this would prove to be problematic for Australian women (Rubenstein 2006) with some problems still persisting (see also Rubenstein’s chapter in this Handbook). In federations formed in the twentieth century, women were more often seen as public persons, but still were politically marginalized alongside other ‘diverse’ groups. A key question present throughout the first two waves of research and persisting into the third wave for gender/federalism researchers is whether women have been advantaged or disadvantaged by federal arrangements. Contributors Kerri Froc, Linda White, Joan Grace, Cheryl Collier and Miriam Smith offer nuanced explorations of this question in diverse policy areas including assisted reproductive technologies, family and social policy, Indigenous reconciliation and LGBTQ rights. One issue explored is if changes in federal arrangements open up more opportunities for women to participate as legislators. Stockemer and Wigginton’s chapter explores quantitative evidence that federations have higher levels of women’s rep-

Introduction  9 resentation in central governments, although this declines in cases where unitary states borrow some federal arrangements. Miller (2010, 175) theorizes that while ‘[f]ederalism may provide multiple pathways of access… it also divides and conquers, isolating poorly resourced groups from one another and making it difficult for them to hold legislators accountable to their interest’. This limits women, most of whom lack resources, to venues close to home that often are inhospitable to their interests. Moreover, organized women face multiple veto points and are otherwise disadvantaged because fragmented federal systems isolate potential allies from one another. Writing about the impact of federalism on feminist projects in Australia, Rubenstein (2006) stated that while feminism and federalism appear to be at odds, when women’s interests are not just understood as territorial in nature, they share important features, notably support for diversity and pluralism. Probably the most important issue explored in the Handbook is protection from violence which feminist advocates lobby for in federations like Brazil as in Bohn’s chapter; in Mexico as in Beer’s chapter; in India as in Anctil Avoine and Viens’ chapter; and in Nigeria as in Dayil and Vickers’ chapter. Of course, violence against women (VAW) is not just a problem faced by women in the global south. For example, the Report of the UN Special Rapporteur on Violence Against Women in Canada (2019) asserts that federalism must not be allowed to be a barrier to women’s human rights, especially to their security. The rapporteur called for legal reforms to harmonize laws about VAW and ‘domestic violence’ in all provinces and territories and to ensure that all women and girls (especially in Indigenous and minority races, ethnic and faith communities) have necessary services to protect them from violence wherever it threatens. But as with many other issues, the diversity produced by federations’ multiple jurisdictions often results in competition among governments with a variety of solutions and policy innovations. Yet to realize the advantage of such diversity and competition, it is essential that the same basic rights are guaranteed for all women and girls wherever they live. Therefore, the contributors to this Handbook are mapping a research agenda for the future, the outcomes of which will contribute to the ‘gender and politics’ field, to federalism scholarship and to comparative politics generally.

1.4

APPROACHES AND METHODS

In the first two waves of gender and federalism research, the dominant approaches were qualitative; that is, they involved descriptions of policies and issues in single federations alongside ‘thick’ comparisons. Among the innovations in the third wave of research is the use of quantitative methods and mixed methods. Initially, there were four main approaches to qualitative research in which concepts, categories and hypotheses are ‘gendered’. They are: 1. reading women in by asking ‘where are women?’ and inserting data about how historical legacies, social forces and institutional arrangements affect and are affected by women’s experiences and gender regimes; 2. reading against the grain which uncovers insights about women’s activities in mainstream texts by making them visible; 3. reading ‘gender’ in which uses gender analysis to reconceptualize accounts that are facially gender neutral; and

10  Handbook on gender, diversity and federalism 4. developing new gender concepts and inserting them into the analysis, thereby challenging traditional orthodoxies. Such approaches facilitated gendered comparisons of federations over time and place. But explaining the dynamics of change such as how early manifestations of IGR become institutionalized requires more systematic qualitative comparison across multiple federations of diverse types. In turn, this requires the operationalization of key concepts, interactions and relationships and, if successful, they also can be quantified. In this Handbook, contributors use a variety of methods, theoretical frameworks and approaches. These include both qualitative and quantitative approaches, comparative analyses, political economy frameworks, counter-factual analyses and the use of diverse theoretical concepts such as polycentrism, global federalism and nested newness, along with chapters that apply approaches to political analysis such as rational and historical institutionalism and feminist institutionalism.

1.5

IN THIS VOLUME

This Handbook is divided into three sections. Part I, Theoretical and Comparative Approaches, begins with Chapter 2 in which Jill Vickers undertakes a comprehensive analysis of IGR across a wide array of federations. Using Ostrom’s polycentric lens, she theorizes that as conflict between central and regional governments declines, the institutionalization of IGR increases. In Chapter 3, Linda White explores why Canadian family policies tend to be less generous than in other Organisation for Economic Co-operation and Development countries. White argues that both federalism and a strong liberal welfare tradition encourage private and market-based approaches to care. In Chapter 4, Peter (Jay) Smith compares northern Nigeria and Quebec to explore what has happened in an era of increasing religious intolerance and legal pluralism. He argues that federal systems offer certain advantages to protect human rights. In Chapter 5, attempting to understand variations in women’s descriptive representation in legislatures, Daniel Stockemer and Michael Wigginton pose and answer the question of whether central legislatures in federal states have higher percentages of women’s representation than in unitary states. In particular, their quantitative analysis opens a new approach to issues such as representation and quotas. In Chapter 6, Judit Fabian grapples with problems of global governance in relation to international relations and security, trade and finance. Because such problems have become increasingly global as the world’s population is more interconnected, Fabian theorizes that global federalism may offer insights about how to advance gender justice effectively. Cheryl Collier’s study of the National Action Committee on the Status of Women in Canada and the National Organization of Women in the US in Chapter 7 concludes this section. In her comparison of these ‘national’ (that is, country-wide) organizations, Collier argues that while decentralization is generally unfavorable to organized women’s groups, the National Organization of Women fared better in the face of change largely because of its decentralized organizational structure based on dues and donations rather than government support. In Part II, Third Wave Gender/Federalism Research in Some ‘Western’ Federations, Miriam Smith (Chapter 8) presents a compelling argument about relations between state architectures of federalism in Canada and LGBTQ movements, especially the role of courts in activism and

Introduction  11 policy-making. In Chapter 9, Kerri Froc also examines courts and judicial decisions with specific attention to a comparison between federalism doctrines in Canada and the US. She argues that in Canada, the division of powers is not necessarily more feminist than in the US. Unlike the US federalism doctrine, however, Canadian courts haven’t uniformly assigned women to the private sphere and legislation for their protection nor as local matters with no national or cross-state implications. In Chapter 10, Melissa Haussman explores changes to social welfare policy by examining Medicaid policy debates in the US, analyzing outcomes of differing political priorities under former Clinton and Obama administrations in comparison to the current federal government under Trump. In Chapter 11, Beverly Baines examines three organized campaigns to constitutionalize women’s rights in Canada and Quebec, stressing how those campaign narratives submerged diverse gendered identities. In Chapter 12, Tània Verge and Alba Alonso reflect on devolution in Spain, investigating how MLG shapes reforms that recognize women’s and LGBTI people’s rights. In Chapter 13, Joan Grace argues that IGR, specifically executive inter-provincialism, constitutes a strategic site for gender and federalism research. This involves analyzing the Council of the Federation’s critical role in shaping opportunities and obstacles of women’s policy advocacy in Canada. Kim Rubenstein’s contribution in Chapter 14 rounds out this section by examining the Australian constitutional system starting from feminists’ role in the country’s adoption of a federal system and considering what this has meant for federalism and feminism scholarship. Part III, Third-Wave Gender/Federalism Research in the Global South: Latin America, Asia and Africa, completes the Handbook with nine chapters about federations in the global south. The first three focus on Latin American federations. In Chapter 15, Debora Lopreite explores women’s policy agencies in Argentina and the impact of IGR in relation to women’s right to access safe abortions and contraception. In Chapter 16, Simone Bohn explores the dilemma of achieving gender-friendly policies in uneven federations like Brazil. Bohn considers the efforts of women’s movements to compel governments to act on legislative efforts to curb VAW. Caroline Beer investigates how federal institutions in Mexico have shaped women’s policy agencies in Chapter 17. Beer demonstrates how Mexico’s complex, multisystem array of women’s policy agencies influences gender policies. The final six chapters focus on gender and federalism in Asia and Africa. In Chapter 18, Mariam Mufti compares local government structures in Pakistan to consider if its new institutional arrangements under recent constitutional reforms and devolution have resulted in favorable and secure environments for women. In Chapter 19, Carole Spary investigates the ‘federalism advantage’ in India. She examines how state architectures and innovations at the regional (state) level which the central government sometimes reproduces, may successfully facilitate the engagement of women’s movements with various levels of government. In Chapter 20, Lekha Chakraborty, Veena Nayyar and Komal Jain challenge the ‘invisibility’ of the care economy within the political economic framework. They discuss the potential value of gender budgeting as a way of empowering women in India’s multilevel federal system. Also analyzing India’s multilevel system in Chapter 21, Catherine Viens and Priscyll Anctil Avoine tackle the entrenched structures of oppressions women often face despite the existence of the 2013 Rape Law. These three chapters dealing with gender/federalism in India provide special opportunities for exploring relations between federalization and democratization. The last two chapters deal with two important, dynamic movements, one of which is very contemporary. In Chapter 22, Susan Henders explores the effects of British-era legacies in Hong Kong. While she finds that the autonomy arrangements negotiated initially were benefi-

12  Handbook on gender, diversity and federalism cial for women, relations are now troubled since being subsumed under Chinese rule. Finally, in Chapter 23, Plangsat Bitrus Dayil and Jill Vickers explore the #Bring Back Our Girls movement in Nigeria in relation to the Boko Haram terrorist movement. In their analysis, they theorize that the ‘overcentralization’ of the central government that resulted from long-time colonial and military rule hampered current governments’ capacities for providing security for women and girls.

1.6

FOURTH-WAVE RESEARCH AGENDA

1.6.1

Gender, Diversity and Intersectionality

A key feature of third-wave gender and federalism research has been the broader range of federations included, the increased consideration of intersectionality, the impact of multiple diverse identities, and their relationships to federal state structures. In the older federations, federal arrangements were often chosen to satisfy diverse representational needs from populations with territorial identities, including minority nations and ethnicities, such as Quebec and Nunavut in Canada. But federalism is less effective in facilitating the representational needs of diverse, non-territorial populations such as Indigenous communities. Many researchers have been drawn to consider the impact and utility of MLG institutional structures for diverse populations inside federations. But much remains to be explored through intersectional frameworks, notably questions about ‘nested’ or combined diversities across and among people affected by the politics and policies from federal systems. At first, early gender and federalism researchers questioned how federal architectures impacted women’s political access and ability to secure policy gains from the state. While this research mostly recognized that women are not a monolithic group, it usually avoided addressing intersectional issues and diverse identities in any depth. But in the third wave, gender scholars have started probing this intersectionality to get a better sense of the nuance of relations between MLG structures and disadvantaged or marginalized groups in society. This expanding research agenda is evident in studies of Quebec feminists who successfully engaged with the provincial government, leveraging intersectional Quebecoise nationalist and gender identities – an intersection absent at the central government level and unavailable to francophone women outside Quebec. Peter (Jay) Smith explores the complex relationship of gender and religious minority identities in his comparative study of gender and religious conflicts in Quebec and Nigeria. Smith’s chapter raises important questions about how federal structures impact diverse feminist interests that don’t easily align. In her chapter, Beverley Baines uses an intersectional approach to highlight how campaign narratives subsume multiple identities (multicultural, indigenous and intercultural) and how they were affected by Section 28 of the Canadian Charter of Rights and Freedoms. The fourth-wave research agenda will undoubtedly expand on exploring intersectionality along these lines and beyond. 1.6.2

Comparing Gender, Diversity and Federalism

A second important area in the fourth wave of gender/federalism research will expand our knowledge of federations in the global south. This is emerging from countries that have experienced socio-economic and cultural upheavals after military or authoritarian rule as in South

Introduction  13 Africa, Venezuela and China/Hong Kong. More needs to be understood about diversities in multilevel, federal or de/centralized countries, especially those currently understudied by gender/federalism researchers. Another aspect of the agenda for the fourth wave of gender/ federalism research will involve knowledge derived from comparisons between federations in western democracies and those in the global south. Such comparisons will produce important insights and perhaps even new ways of promoting gender equality as well as achieving productive institutional restructuring of federal systems. They will certainly involve the use of frameworks and ideas introduced by contributors to this Handbook, such as Judit Fabian’s use of global federalism as a new conceptual pathway.

NOTES 1. There are several ways of defining a ‘gender regime’, but for our purposes, it can be understood as a particular set of relations among the sexes in a particular place and historical context. Several regimes usually coexist in a country and period. 2. ‘Federalization’ is a concept mainly used in legal studies. But Miller (2008) also applies it to policy issues and institutions. We follow her more dynamic approach. 3. Dardanelli et al. 2019. Note that all eight authors are men and gender is not considered in the text. 4. M.A. Jinnah, the founder of Pakistan, was an important exception who favored federation as a way of gaining as much autonomy for Pakistan as possible. 5. Malaysia is a multiparty democracy in which, nonetheless, the central government has been controlled by a single party from 1957 to 2018, when a peaceful transition of power to an opposition party occurred. Because ethnic Malays are a bare majority in Malaysia, the governing Malay-nationalist party mobilized Malay women in its support. But Malaysia’s head of state is a ‘Supreme King’ selected by rotation from among the nine sultans who lead the Muslim-majority Malaysian states. Muslim women are subject to the Shari’a courts that coexist with English common law, but legal pluralism legislated alternate gender regimes for the larger minorities (Ng 2012). 6. For a gendered examination of the Russian Federation see Chandler 2010. 7. A key text in English is Gibson 2004. However, it completely ignores women and gender regimes.

REFERENCES Allen, Judith A. (1994), Rose Scott: Vision and Revision in Feminism, Melbourne: Oxford University Press. Bednar, Janna (2008), The Robust Federation: Principles of Design, Cambridge: Cambridge University Press. Beer, Caroline (2017), ‘Making Abortion Laws in Mexico: Salience and Autonomy in the Policy Making Process’, Comparative Politics, 50 (1), September, 41–59. Bhattacharyya, Harihar (2010), Federalism in Asia: India, Pakistan and Malaysia, London: Routledge. Chandler, Andrea (2010), ‘Women, Gender and Federalism in Russia’, in Melissa Haussman, Marian Sawer and Jill Vickers (eds), Federalism, Feminism and Multilevel Governance, Farnham: Ashgate. Dardanelli, Pablo, John Kincaid, Alan Fenna et al. (2019), ‘Dynamic De/Centralization in Federations: Comparative Conclusions’, Publius, 49 (1), Winter, 1–29. Gibson, Edward L. (ed.) (2004), Federalism and Democracy in Latin America, Baltimore: Johns Hopkins Press. Máiz, Ramos, N. Lagare and Pereira M. (2018), ‘Catalonia: Federalism or Secession’, Open Journal of Political Science, 8, 495–524. Miller, Lisa (2008), The Perils of Federalism: Race, Poverty and the Politics of Crime Control, New York: Oxford University Press.

14  Handbook on gender, diversity and federalism Ng, Cecilia (2012), ‘Gender and Governance: The Politics of Federalism in Malaysia’, Kajian Malaysia, 30 (2), 1–26. Przeworski, Adam, Michael E. Alvarez, Antonio Cheibub and Fenando Limongi (2000), Democracy and Development: Political Institutions and Well-Being in the World: 1950–1990, Cambridge: Cambridge University Press. Ritter, Gretchen (2006), The Constitution as Social Design: Gender and Social Membership in the American Constitutional Order, Stanford: Stanford University Press. Rubenstein, Kim (2006), ‘Feminism and Federalism’, address at the Gilbert and Tobin Annual Law Conference, February 24, accessed August 20, 2019 at https://​law​.anu​.edu​.au/​sites/​all/​files/​ 7​_KimRubenstein​.pdf Sommer, Udi (2018), ‘Women, Democracy and Politics: How Lower Fertility Rates Lead to Democracy’, Demography, 55 (2), 559–86. Vickers, Jill and Annette Isaac (2012), The Politics of Federalism: Canada, Australia and the United States, 2nd ed., Toronto: University of Toronto Press. Watts, L. Ronald (2000), ‘The Challenge of Federalism and Its Implications’, in Yash Ghai (ed.), Autonomy and Ethnicity: Negotiating Competing Claims in Multi-ethnic States, Cambridge: Cambridge University Press, 29–52.

PART I THEORETICAL AND COMPARATIVE APPROACHES

2. How can comparative studies of federations be gendered? Gendering inter-governmental relations Jill Vickers

2.1 INTRODUCTION This chapter explores how comparative studies of federations, especially of inter-governmental relations (IGR), can be ‘gendered’. Recent publications (Vickers 2012; 2013) show how states ‘make gender’: whereas unitary states promote a dominant gender regime and discourage minority regimes; in federations responsibility for family law is often assigned to regional governments resulting in multiple gender regimes and unequal gender relations according to region. This parallels research (e.g. Vickers and Isaac 2012) about how states ‘make race’ drawn from critical race theory. But new projects (Vickers 2012; 2013a; Peter (Jay) Smith this volume) deal with conflicts between gender equality initiatives, notably family law reform and religious rights. This suggests that comparing ‘gendered’ studies of IGR may require a new framework. The chapter explores the value of Eleanor Ostrom’s (2005) framework for this purpose and her theory of polycentrism – decision making with more than one center – for comparing IGR across federations. It also considers that it would allow the use of both qualitative and quantitative methods. Previously, comparative studies of federations focused mainly on institutions, informal processes and ideas, paying little attention to the social forces that shape them; or to women’s opportunities to participate in IGR. Such research is static and leaves the social forces that shape federal institutions and opportunity structures largely unexamined. This limits the study of ‘gender’ to its role in ‘social movements’ and ‘welfare policies’, not as a basic unit of analysis. Because an effective framework must also be able to theorize how institutions change, the chapter focuses on factors that promote or inhibit the institutionalization of IGR. Existing sociological frameworks consider the social forces that shape federations (e.g. Erk 2010) but focus mainly on language and ethnicity, ignoring ‘gender’ and religion. Moreover, such frameworks have been based on qualitative comparisons of western federations, resulting in little theoretical development. Development requires a broader range of cases, especially inclusion of federations in the global south. Consequently, federalism scholars (e.g. Burgess 2006) believe that only liberal democracies can be ‘real’ federations. This ignored how, historically, liberalization and democratization shaped emerging federations that subsequently would become stable liberal democracies. Comparing the effects of such processes across a wider set of federations is more likely to let scholars theorize how change in IGR occurs and how gender affects such change. Ostrom’s framework permits comparisons of federations with different founding histories, at different stages of development and different patterns of IGR. It helps uncover the dynamic processes of change; how conflict is managed; and how IGR become routinized and are insti16

How can comparative studies of federations be gendered?  17 tutionalized. Exploring women’s experiences in cases of coerced, post-conflict federalization such as Iraq or Bosnia-Herzegovina show how diversity and the conflict it often produces, especially in the early phases of federalization, affect IGR. Most research about IGR has been based on the United States (US): indeed, Wright (1974) claimed that IGR actually originated in the New Deal and its social welfare legislation. Corwin (1950, 19) identified a pre-1937 phase of IGR as when powers were divided in ‘dual’ or ‘layer cake’ federations. But IGR occur in all federations making it important to understand how conflict relates to policy-making and how both relate to the institutionalization of IGR. The chapter uses both insights from the early stages of western federations and insights from federations in the global south to theorize why the institutionalization of IGR increases when conflict declines. The chapter’s key hypothesis is that, as federalization develops, conflict among governments declines, facilitating the increased routinization of interactions and institutionalization of IGR. But the extent of routinization varies according to how much conflict governments must manage and the extent of diversity to be accommodated in policy-making. Most studies of developed western federations conceptualize IGR in terms of policy-making interactions between central and regional governments. But in new federations with more conflict, governments interact in other ways too. Especially in federations in the global south, IGR often display conflict over dividing resources such as the ongoing conflicts over oil revenues in Nigeria. The chapter conceptualizes three types of federations: mono-national, multinational and multi-ethnic. This typology is associated with different patterns of IGR (see below) with the challenge of managing conflict the greatest in very diverse, multi-ethnic federations like India and Nigeria but least in long-established, mono-national federations in which IGR are well institutionalized. Among the types of conflict developing federations may experience are partition, civil war, secession, the subdivision and creation of constituent units (CUs) including states, provinces and territories, changes in internal boundaries and territorial expansion. Such conflicts are also associated with democratization, liberalization, ‘modernization’ and secularization or re-traditionalization. In some cases, federalization fails although few comparative studies include failed projects or consider why they fail.1 Ostrom (2005) conceptualizes multiple, nested decision arenas with rules about who can participate. Her framework bridges institutional variables and social forces, permitting the inclusion of numerous gender variables. Ostrom’s focus on agents facilitates systematic comparisons of decision arenas and nodes of interaction at different levels, across federations and over time. She also theorizes that collective decision making involves both emotion and rationality and conflict and competition as much as cooperation and coordination. Consequently, her framework can capture IGR at different stages of development, when emotions are high, for example in conflicts with a high potential for violence; and when more institutionalization increases rational cooperation. Using Ostrom’s framework, the chapter conceptualizes three types of IGR, shaped by different founding conditions, institutional arrangements and the extent and depth of diversities in each case. This permits exploration of the social forces that sustain the diversities that make IGR more conflictual and less susceptible to being institutionalized. These types also vary in their openness to women’s participation in IGR, especially as leaders, which the chapter explores by correlating women’s levels of representation with family law reform. Ostrom’s framework also permits the mapping of large numbers of decision arenas and nodes making possible quantitative comparisons of the 500+ meso-level or regional governments (states, provinces, territories, etc.) in existing federations.

18  Handbook on gender, diversity and federalism After a brief discussion of the research problem, the chapter explores five themes. The first outlines concepts and insights drawn from Ostrom’s theory and her agent-based approach. The second theme outlines three types of IGR in relation to the extent and depth of their diversity, their potential for institutionalization and the variables that shape their institutions and practices. The third section explores family law as the main mechanism states use to ‘make gender’ and the importance of family law reform to women’s citizenship and opportunity to participate in IGR. The fourth theme considers how the key variable of women’s representation can be inserted into work to compare IGR. The fifth theme considers how Ostrom’s framework facilitates the use of quantitative methods and assesses their value by relating women’s representation and family law reform in the three types of IGR. The conclusion assesses the potential of Ostrom’s framework for ‘gendering’ comparative studies of IGR. It also establishes that the limited origins of the concept of IGR in US experience limits its value for comparing developing federations, especially in the global south. What is needed is a new conceptualization of IGR that includes conflict management and the accommodation of diversity as interactions with evidence drawn from asymmetrical, multinational and multi-ethnic federations, especially in the global south.

2.2

THE RESEARCH PROBLEM

Ostrom’s agent-focused approach conceptualizes how power is organized in polycentric decision-making systems. Over time, the conflicts present in federations at their founding may be routinized by repeated interactions among actors unless conflicts that inhibit institutionalization persist. New, highly diverse federations often lack the effective institutions needed for managing conflict (e.g. judicial independence, the rule of law), but decades of trying to manage conflicts either results in their reduction or in the routinization of management practices that evolve into developed and institutionalized IGR systems. Federations differ in the extent to which their decision making is hierarchical or polycentric, although this also can change over time. Therefore, comparing federations at different stages or ages can reveal much about the processes of change and the evolution or federalization of institutions. The three types of IGR this chapter models combine change over time and the depth and persistence of diversities that result in conflict. Conflict can range from dissentions, contestations, etc. but may also involve oppression or even armed conflict (see Dayil and Vickers this volume). But the research problem also involves understanding the extent to which IGR have been routinized and institutionalized and the conditions that fostered such developments. It also involves determining how extensive and deep the diversities causing conflict are; and how they can best be ‘managed’ or accommodated. The chapter maps the social forces that affect institutional arrangements to accommodate ethno-linguistic, ethno-religious and tribal differences. It also maps the public/private divides that structure decision making along gender lines, which is an unstated part of the Westphalian state model2 maintained mainly by family law. Watts (2005, 324) theorizes that ‘the processes by which federations are established affect the formal distribution of powers’, which is one factor that shapes IGR. Baines and Rubio-Marin (2005, 12) maintain that when federations are established, ‘the main consequence… is often to allocate “private matters” to the regional entities’ which associates meso-level governments with the private sphere. The operating logics of IGR reflect their federation’s founding, the extent

How can comparative studies of federations be gendered?  19 of diversity, conflict and popular support for its institutional arrangements and division of powers.3 Ostrom’s model of nested decision arenas and her insights about agents and rules that govern who can participate provide valuable conceptual bridges between the historical/institutional and social variables, including gender, in shaping IGR. This echoes Schattsneider’s (1960, 40) claim that ‘it matters whose game we play’ because the ‘rules of the game’ determine the requirements for success. Such ‘rules’ together with different historical contexts and institutional configurations constitute the operating logic that animates the three types of IGR. They usually benefit ‘insiders’ – mostly men – while disadvantaging ‘outsiders’ and the marginalized – mostly women. Institutionalists see ‘the rules’ as shaped by a federation’s institutions; those who adopt a sociological viewpoint see them in terms of social forces. But incorporating ‘gender’ requires an interactive approach involving both. Ostrom’s approach considers how participation rules are shaped and changed in different decision arenas and nodes, and over time. Which actors dominate IGR in different federations depends on historic legacies, the diversity of social groups, how they are represented and the extent and depth of conflict among them. If conflicts between central and regional governments persist, IGR may include violence and participation by military or security actors which often exclude women (see Dayil and Vickers this volume). Institutional arrangements also determine who may participate in IGR; for example, where meso-level governments are represented through inter-state mechanisms, legislators lack clout in IGR which chief executives dominate. The more institutionalized IGR are, the more important senior bureaucrats become; the less institutionalized, the larger the roles for coercive actors such as military or security. But relations between the characteristics of actors in IGR and policy outcomes are complex. Senior bureaucrats shape the ‘categories of concern’ (Chappell et al. 2012), while (non-governmental) stakeholders shape ‘available options’. Pressure from international organizations also plays a role, for example in pressuring governments to adopt electoral quotas that often increase women’s legislative representation. But this is more likely to increase women’s clout if IGR are institutionalized. Moreover, who has clout depends on how institutionalized IGR are; how governance is structured; and the characteristics of key actors.

2.3

OSTROM’S FRAMEWORK

In modern political science, central governments usually are considered dominant because of their coercive monopoly and the right international law gives them to confer citizenship, define nationality and determine language use in the territory they control. But in her conceptualization, Ostrom (2005, 28) draws insights from self-governing, polycentric, resource management systems that interact with no direction from a dominant, central authority. Ostrom (2005, 286) defines ‘governance’ as ‘an adaptive process with multiple actors at diverse levels… [that is] terribly messy and hard to understand’. She also theorizes that there is a universal set of building blocks underlying all structured interactions on which useful theories of human behavior can be based. Ostrom and her colleagues think their Institutional Analysis and Development framework can be used to analyze the many nested layers of decision arenas and the interactions within decision nodes.

20  Handbook on gender, diversity and federalism Ostrom’s framework focuses on actors in ‘decision-nodes’ interacting within ‘decision arenas’ according to formal and informal rules, norms, unwritten agreements and long-established practices. It facilitates gendered analysis by focusing on actors and the rules empowering or disempowering them. Moreover, its analysis of how decision arenas and nodes work provides a conceptual bridge between institutions and social variables that currently divide comparative scholars of federalism. Importantly, Ostrom (2005, 7) also theorizes that the actors are both rational and emotional ‘fallible learners’ who learn from the mistakes they make. This challenges the hard line usually drawn in traditional conceptualizations of IGR between rational policy-making and emotional interactions including conflicts that may involve violence. Ostrom (2005, 286) conceives of decision arenas and nodes as competitive as well as cooperative, with the potential for much conflict because of the interdependence of their interactions. This insight echoes accounts (e.g. Kincaid 1988; Kenyon and Kincaid 1991) about IGR. The chapter focuses on interactions among these processes in the three types of IGR, how they shape gender/power relations and their impact on institutionalizing IGR in each federation. Ostrom’s framework also provides insights about rules structuring participation which permits the incorporation of gender variables like women’s participation in IGR as actors and the social forces that sustain or change IGR. It raises questions, for example about whether more women in IGR would produce more ‘women-friendly’ outcomes. Ostrom (2005, 40, 38) observes that ‘individuals with… ascribed… attributes… [e.g.] ethnic background, gender or education may be enjoined from participating in any “action situation” or “focal unit of analysis”’. Ostrom (2005, 32) also maintains that her framework unifies analyses of all ‘repetitive and structured interactions including in families, neighbourhoods, markets… and governments at all scales’. Mapping the decision nodes in IGR involves identifying the number and status of participants and any attributes that qualify or disqualify them as participants. Ostrom (2005, 7) stresses the importance of ‘know[ing] enough about the structure of a situation to select the appropriate assumptions about human behavior that fit the type of situation under analysis’. Mapping the framework also includes the number of units in a decision node, the history of inter-unit interactions, potential participants and their attributes plus possible alternative actions. This can open up studies of IGR to insights drawn from gender research about representation, leadership, violence and militarism, and innovations like quotas and women’s policy agencies (WPAs). Ostrom identifies ‘gender’ as an important part of institutional rules, but, some of her assumptions are problematic. For example, Ostrom (2005, 19) claims ‘each family constitutes its own rule-making body’. In many countries, however, either central or regional states ‘make’ gender regimes; while in others they lack the capability or will, and let religious or cultural institutions create the rules that shape gender relations. Maps of decision arenas and nodes identify who may make decisions, according to what rules, who influences decision makers and who generates agendas, action plans and alternatives. They vary by type of IGR, policy field and governance structure: for example, with intra-state mechanisms, women legislators are more likely to be actors in IGR; but with inter-state mechanisms, legislators have little clout so increasing women’s share as executives and senior bureaucrats matters more. Nonetheless, persisting, deep and often violent divisions inhibit institutionalization. Executive offices also may be governed by consociational norms that in practice exclude women from leadership because, while they give ‘cultural’ minorities a proportional share of offices and even the right to veto changes they perceive as threatening

How can comparative studies of federations be gendered?  21 Table 2.1

Characteristics of three types of inter-governmental relations Type 1

Type 2

Most institutionalized IGR Least violent conflict* Mono-national

Type 3

←

Least institutionalized IGR

→ Multinational

Most violent conflict Multi-ethnic

Culturally homogeneous

Competing central/‘peripheral’

Multiple ethno-linguistic, ethno-religious

Assimilation strategy

nationalisms

diversities

Accommodation strategy for some minority Conflict-management strategy suppression Central government dominant

Competition between central and

of minority claims Conflict over state power – one-party

Emphasis on inter-level and meso-level

meso-level governments and competing

dominance alternates with electoral

coordination

national projects

democracy

Emphasis on managing competition

Emphasis on development, channeling conflict among multiple minority actors

Vertically integrated party and interest

between central/regional ‘nations’ Vertically fragmented party and interest

advocacy systems

advocacy systems

interests. Emerging party system

Regional interests represented

‘Peripheral nations’ interests represented

fragmented

by intra-state mechanisms and in

by inter-state mechanisms, especially

Multiple interests represented in

inter-governmental institutions

executive federalism

central party coalitions, by dominant

nationalisms

Vertically and horizontally fragmented

party co-optation and unit/boundary Center dominates through financial and

Both central and meso-level governments

restructuring Conflict among governments and

resource control

have significant control over taxation,

competing groups over state powers,

Equalization in social programs stressed

resources and spending

resources and taxes

(US in an outlier)

Competition between central and

Limited central provision of social

meso-level governments over which

benefits, which meso-level/local unit

controls social programs

determines

Belgium, Canada, Spain, Switzerland

Brazil, India, Malaysia, Mexico, Nigeria,

Argentina, Australia, Austria, Germany, US

Russia

Note: * Currently; most had violent conflicts during their development.

to their identities, sole leaders are almost always men. So, while participation rules always matter, how they matter varies by type of IGR.

2.4

A TENTATIVE TYPOLOGY

Gendered comparisons of IGR across federations requires simplification of the complex historical, institutional and social variables involved. The chapter models three types of IGR outlined in Table 2.1 which also maps the rules (or their absence) that structure the situation. To Ostrom, rules are made and changed by individuals and groups and often have unintended outcomes; but in practice, governments also maintain and change rules. The first type of IGR occurs in ‘coming together’, mono-national federations with a single, mobilized nation and a dominant, common language and culture into which most minority groups are assimilated. This increases the social homogeneity Watts (2005, 324) found commonly correlated with the allocation of more powers to the central government by the constitution. The nation-building strategy is assimilative so the dominant ethno-linguistic and ethno-religious elites control and shape central institutions and ensure that smaller national

22  Handbook on gender, diversity and federalism communities are denied control of their own CUs. Symmetrical, hierarchical power relations exist between central and meso-level governments which can delegitimize institutions such as those of IGR. Legislative and administrative powers are either divided between levels or assigned functionally with the central legislating policies and meso-level or regional governments implementing them. Local governments are not generally empowered constitutionally. CUs are represented mainly through intra-state mechanisms (upper houses), initially with some independence between levels. Party and interest advocacy systems are increasingly integrated between levels. Increasing fiscal dominance by the central government produces more functional interdependence, increasing hierarchy in power relations. It also makes IGR cooperative as well as competitive or conflictual. As social programs develop, a preoccupation is to coordinate delivery and usually achieve the equalization of benefits. Conflict increasingly is channeled into vertically integrated, ideologically competitive party systems. Where CUs are represented mainly through inter-state mechanisms, institutionalization of IGR may be limited by the number of CUs. The second type of IGR occurs in multinational federations that accommodate ‘national’ claims of one or several larger minorities by giving it or them some measure of self-rule through regional governments. But local governments usually remain subject to their regional counterparts. Relations between central and regional governments are often asymmetrical because CUs making national claims ‘opt out’ of country-wide programs, demanding more legislative and administrative autonomy and ‘special status’, sometimes backed up with threats of secession. Watts (2005, 324) maintains that ‘the sharper the diversity, particularly where linguistic and cultural differences are deep-rooted, the greater the relative autonomous powers assigned to the constituent units of government’. When regional governments making national claims have economic clout, they can defend such claims which affects IGR by reducing interdependence, limiting central government dominance and inhibiting institutionalization. Inter-state mechanisms dominate IGR, often through executive federalism; but intra-state mechanisms (e.g. cabinet and court appointments) also play a role, especially in ‘holding together’ previously unitary federations. The demands of one regional government for ‘nation-to-nation’ relations often spread to others that originally didn’t advance national claims. All CUs may cooperate to develop a common negotiating position in relation to central government actors, but how effectively depends on the number of CUs. Moreover, the more independent regional governments are, the more potential there is for conflict among them; and between competing central and regional national projects. In type 2 IGR, relations between central and regional governments are more competitive and less institutionalized than in type 1 but more than in type 3. Nationalism is a key subject of competition and the chapter conceptualizes nationalism as ‘the making of combined claims, on behalf of a population, to identity… jurisdiction and … territory’ (Hearn 2006, 11). Claims to identity involve the right to express ethnic, linguistic and religious characteristics and abstract qualities such as egalitarianism or tradition for a population that coincides with the boundaries of the federation, or of an internal territory. Claims to jurisdiction involve the right to make and/or administer laws, taxes, etc. within a territory. But the extent of such claims vary especially regarding military power and international affairs. The Westphalian model4 valorizes territorial diversity and favors long-term occupancy of a territory in establishing a people’s claim to self-rule. State-led nationalisms in which elites of the dominant culture use central state institutions for country-wide nation building differ from the oppositional, state-seeking, minority nationalisms underlying type 2 IGR. ‘Nation building’ promotes ‘cultural’ homogeneity including a common language, while state-seeking minorities use nationalism to justify

How can comparative studies of federations be gendered?  23 more self-rule and autonomy. Federations result when efforts to dominate and assimilate minority nations fail; when no cultural group can dominate; or when coercive assimilation is risky because neighbor states support minorities. The third type of IGR is featured in multi-ethnic, post-colonial federations founded after 1945. They feature competition for governance powers and resources based on the belief that only a government your own community controls will deliver the outcomes you want. So, IGR are shaped by competition for decision-making power at all levels with conflict among multiple, ethno-religious and/or linguistic groups demanding control of state institutions or new CU borders. The extreme diversity characterizing these federations results in highly conflictual IGR such as occurs in India, Pakistan and Nigeria. For example, Nigeria has three large competing ethno-linguistic and religious groups, plus 250 minorities all of which want some degree of self-rule and their own governments (Suberu and Diamond 2002, 327). Within the current 36 states, minorities seeking self-rule attempted secession, civil war and insurrections; moreover, military governments gave some constitutionally protected governance powers to 774 local governments. So the minorities that lack their own governance powers also may resort to violence to gain them, especially if their historic rival dominates government in the territory they share. Family law reform often invokes conflict in federations with type 3 IGR because efforts to change gender regimes by those in control of a regional government is considered a threat to the subordinate minority’s way of life. So, while central governments generally dominate IGR for matters of security and economic development, family law is often devolved to regional governments and defined as ‘local’ with defenders of the status quo resisting all efforts to make them ‘national’. IGR are weakly institutionalized and meso-level governments rarely control enough taxing power or resources to defend their legislative or administrative autonomy, except in symbolic areas.5 There are exceptions, for example Malaysia where traditional Muslim and customary leaders head regional governments, despite a dominant central government. Federations with type 3 IGR often were forcibly founded with unsettled boundaries. One-party rule with authoritarian or militaristic values are embedded in IGR often in alternation with electoral (but not liberal) democracy. Where national liberation movements morphed into one-party government as occurred with the Congress Party in India, IGR occur inside the party. But when new generations start participating, the party system fragments and within several generations has fragmented horizontally and vertically. One important indicator is if governors are appointed by the central government as in Russia and South Africa, or selected by regional assemblies or electorates. Central governments also often try to weaken potential competitors by appointing governors they can control and/or by empowering local governments to undercut regional competitors. In multi-ethnic federations, issues relating to religion, ethnicity, language, caste or tribe are hotly contested and occur outside institutionalized IGR. Territorially organized diversity may be accommodated by creating new CUs or CU borders; ethno-religious diversity is addressed by having multiple family law codes for example, through legal pluralism or by downloading or offloading gender regimes to religious authorities. Central governments may sign on to international treaties like the United Nations’ Convention on the Elimination of all Forms of Discrimination Against Women but then lack the capacity or will to implement them, inhibiting family law reform. Further, power-sharing practices often repress women’s selection as group leaders (Hayes and McAllister 2012).

24  Handbook on gender, diversity and federalism The three types of IGR also reflect different interactions between nationalisms and territorialized ethnic or religious claims, especially during state formation (Burgess 2006). Type 1 results when a single, dominant national project is imposed on the population by the central government because no other national claimants were strong enough to challenge it. Top-down hierarchical or involuntary interdependence currently characterizes type 1 IGR. Type 2 IGR are structured by competition between a central national project and one or more minority nationalisms in CUs competing through IGR to increase their power, at least one minority nationalism dominates a CU, although other communities may successfully press central governments to create new CUs as with Nunavut which the Canadian government carved out of the Northwest Territories for some Inuit self-rule. Type 3 IGR involve many deep, intense diversities, few of which coincide with the boundaries of a CU. Moreover, the diversities associated with type 3 IGR are less organized; therefore, the number of deep, intense and organized diversities demanding self-rule can be used to differentiate the three types of IGR from one another.

2.5

POLYCENTRISM, IGR AND FAMILY LAW REFORM

UN Women (Report 2011, 12, 3) describes ‘inequality in the family… [as] the most damaging of all forces in women’s lives, underlying all other aspects of discrimination and disadvantage’. Strong states use family law to shape and enforce gender regimes (Vickers 2013) but in common law federations, constitutions often assign it to regional governments making reform difficult. Family law reform raises complex issues about territory and national or cultural diversity, since family law can apply to everyone within a territory or to members of an ethnic/ religious community wherever its members live. The mechanisms are multiple, legislated codes implemented by governments and/or non-governmental authorities. Legal pluralism exists when central governments delegate responsibility for policy to regional governments or offload it to non-governmental authorities. This results in multiple codes and makes reform both complex and often conflictual. Many consider legal pluralism a major obstacle to family law reform (Htun and Weldon 2012) and also correlated with high levels of violence against women (Hudson et al. 2011). Territorial pluralism, a constitutionally sanctioned form of legal pluralism that gives meso-level governments the power to legislate, is also dangerous for women if not regulated (Vickers 2013a). In type 1 IGR, central governments usually can regulate meso-level governments and their family law if considered discriminatory. But in type 2 and especially type 3 types of IGR, central governments often lack the capability and/or the will to regulate regionally sanctioned family law – a process which is conflictual in diverse societies. Especially in the global south, relations between states and religious authorities often are unsettled and conflict between secularists and traditionalists over women’s and religious rights can be extreme. How is family law reform best conceptualized within a polycentric framework? Reforming family law, especially with multiple codes, involves both state and non-state actors at multiple levels interacting through IGR. Even under military governments, some civil society actors influence policy-making, such as dominant religious authorities. Reform is more complex with multiple law codes. Gender scholars (Sawer 1990; Chappell 2002; Gray 2010, Vickers 1994; 2013a) are divided about whether diffused authority hurts or helps women achieve gender reform. Gender scholars like Htun and Weldon (2012) consider it bad for family law

How can comparative studies of federations be gendered?  25 reform. Also suspect is territorial pluralism that gives regional governments the power to impose restrictive family law as part of minority claims to defend national, ethnic or religious ‘traditions’. Why does family law reform matter? Inequality in family relations weakens women’s citizenship and undercuts their participation in decision making (UN Women Report 2011/12; Vickers 2013a). Territorial pluralism poses fewer risks, provided central government actors can and will regulate their regional and local counterparts (Vickers 2013a). But this is difficult in type 2 and especially type 3 IGR because many communities resist central government ‘interference’ in what they consider ‘private’, ‘moral’ or local issues. Even in type 1 IGR, equality issues often ‘fall off the table’ in policy negotiations. In theory, diffused power and the ‘local autonomy’ of polycentric systems should give women more decision-making clout, but in practice, the rules often exclude women or they lack the power in their families to advance their interests. Why should women trust central state actors more than their regional or local counterparts since both usually are male dominated? The former are more exposed to the international organizations promoting gender equality with the clout to support women’s equality and family law reform. Local and regional governments are more easily co-opted by traditional defenders of the status quo. International scrutiny can make a difference: if central governments promise reform, a significant presence of reform-minded women in IGR can keep gender reforms on the agenda. There also are controversies6 about how to measure family law reform (see Vickers 2013a). In this chapter, rankings are used that include relational measures that capture the balance of power between the sexes and the institutional contexts in which families function and family law reform occurs. McDermott’s (2007) family law scale measures how these six relational factors affect gender equity: spousal ages on (first) marriage; the ease or difficulty of divorce for both sexes; rules against adultery for both sexes; women’s access to safe abortion; how husbands’ right (or lack of right) to take new wives affects marital relations; if violence and rape in marriage are tolerated or criminalized. The rankings show how family law and practices affect women’s autonomy, their relative power in marital relations and their agency in the public sphere. These rankings include both majority and minority culture family laws and practices.

2.6

WOMEN’S REPRESENTATION AND PARTICIPATION IN IGR

Generally, theorists of democracy consider legislatures the key sites for representation, parties and interest groups the key agents and elections and interest groups the key channels. However, modern theorists increasingly focus on additional sites, agents and channels between elections as well as during them. Urbinati (2006, 6) theorizes that representation is ‘intrinsically and necessarily intertwined with participation’. Many gender scholars focus on getting enough women legislators (a critical mass) to make assemblies and the laws they pass more ‘women-friendly’; however, many feminists employ an expanded conception of ‘politics’ focused on social transformations. Some mainstream scholars (e.g. Dalton 2008; Bang and Sorenson 1999) also consider conceptions of representation that focus on legislatures too narrow and promote expanded conceptualizations of ‘participation’ stimulated by new technologies, identity politics and social movements. Groups marginalized and/or alienated

26  Handbook on gender, diversity and federalism from electoral politics de-emphasize activities in governance institutions in favor of more accessible social/cultural sites such as churches and community associations and in conflict zones, churches, mosques, etc. Norris (2002, 215–16) maintains that political participation has been diversified into more ‘agencies’ (collective organizations structuring political activity), ‘repertoires’ (sets of actions commonly used for political expression) and ‘targets’ (political actors who seek to influence politics). Ostrom’s focus on who shapes agendas and alternatives parallels perceptions that participation increasingly is diversified into multiple sites, with multiple agents focusing on varied targets. Nedelsky’s (2011) theory of ‘relational autonomy’, for example, explores how gender power relations, responsibility and care work affect the ability of women to act autonomously as citizens or political actors. Table 2.2 uses McDermott’s scale which is based on ‘relational autonomy’ and includes both minority and majority communities’ laws and practices, repertoires and channels. Both Urbinati and Ostrom emphasize the actions of citizens more than the actions of representatives. Citizens want to hold governments accountable and make them keep their promises. They also want to participate in making decisions that affect their lives between elections. But frustration results when elites block such efforts, increasing alienation and violence. Most gender scholars ignore IGR assuming that central governments can overrule their regional counterparts. But where regional governments participate through intra-state mechanisms such as senates, women’s descriptive representation becomes significant and quotas (Krook 2009) may be sought to increase numbers provided electoral systems are supportive. While initially quotas were only applied to central governments, in some federations (Argentina, Mexico, Spain), regional governments now also have quotas. But where inter-state mechanisms make the executive’s participation key, quotas have less impact on IGR. Nonetheless, many gender scholars think increasing women’s share of legislative seats to at least a third of central legislatures (a ‘critical mass’) is a necessary if not sufficient condition for achieving the substantive representation of women’s interests. However, many of the most powerful positions (prime ministers, cabinet ministers, senior bureaucrats and judges) are appointed; nonetheless, candidates for executive and leadership offices often must first serve as elected legislators. Hence, studies of how IGR are ‘gendered’ must consider how both elected and senior appointed officers participate.

2.7

METHODOLOGY, WOMEN’S REPRESENTATION AND FAMILY LAW REFORM

This section briefly considers several questions about methodology, including the potential value of quantitative methods for gendered comparisons of IGR. Ostrom’s framework facilitates quantitative analysis by focusing on how agents interact in decision arenas and nodes. Adding quantification expands the scope of comparison by adding the over 500 meso-level (regional, territorial, etc.) governments in federations. Until recently, there has been little quantification because of the lack of reliable data about regional institutions and what happens within the ‘black box’ of IGR. This provides one example of how quantification can be of value in testing hypotheses that relate to IGR. The systematic comparison of federations also would be much easier if agencies like the Inter-Parliamentary Union would include women’s descriptive representation in regional governments in their mapping. This would provide over

How can comparative studies of federations be gendered?  27 Table 2.2

Women’s representation and family law reform Central Governments (2012)

Family law ranking* (2007)

Regional Governments (2012–13)

Composite

Leader’s

% women

Women

% women

representational

sex

legislatures #

governors #

in regional legislatures

scale ! Lower

Upper

Houses averaged

Equitable Good

F

37

39

3/8

32

Austria

Australia

Excellent

M

30

31

1/9

31

Belgium

Good

M

38

41

2/3

39

Canada

Good

M

25

28@

6/13

35

Germany

Excellent

F

33

28

4/16

33

Spain

Excellent

M

36

33.5

3/19

44

Generally equitable Argentina

Good

F

37

39

2/23

27.5

Brazil

Poor

F

9

16

2/27

12

Malaysia

Poor

M

10

23

0/13@

6

Russia

Poor

M

14

5

1/83

ND

Switzerland

Good

F

28.5

20

1/26**

25

Mediocre

M

17

17

6/50

23

Mexico

Mediocre

M

26

23

1/32

ND

South Africa

Excellent

M

42

32

5/9@

375

India

Poor

M

7

6

3/28

8

Nigeria

Poor

M

23

16

0/37

ND

Pakistan

Mediocre

M

26

23

0/4

18

US Somewhat inequitable

Inequitable

Notes: * Womanstats scale 3; @ appointed; ** collective executive; ND no data/incomplete data; # Interparliamentary Union data; ! ordinal rankings 2010 from Womanstats.com.

500 more cases and expand the scope of IGR for comparisons. For comparative analysis, decision arenas and nodes at each level in each federation need to be mapped and the mapping updated. It would be possible to explore gender participation in IGR in all types of federation. But understanding how IGR changes also requires a comparative framework that can promote understanding of how IGR are institutionalized which requires exploration of the powerful social structures and forces like nationalism that structure institutions. Table 2.2 correlates the descriptive representation of women7 as legislators and chief executives with family law rankings to show the extent of reform. The scale for representation is a preliminary measure (with missing data) of women’s ‘presence’ in IGR. However, numbers alone are but a rough guide to women’s ‘clout’ in IGR. For example, based on the numbers, the ‘presence’ of South African women in the central government is ‘excellent’, but many gender scholars have shown that women’s clout within the ANC government was short-lived. Moreover, since the ANC leaders were determined to undercut any competition from regional governments they appointed women (often feminists) as governors who they could ensure would be agents of the central government not of their region. Also to be considered is how to incorporate the effects of quotas and the method of appointing governors. Nonetheless, there is a correlation between an ‘excellent’ or ‘good’ descriptive representation of women in central legislatures and the highest ‘equitable’ ranking on the family law scale. The federations shown in Table 2.2 all survived for at least four decades, except for

28  Handbook on gender, diversity and federalism the Russian Federation for which reformed family law is an historical legacy from the Soviet Union. Table 2.2 shows that women’s presence in formal politics and family law reform support the chapter’s hypothesis about conflict as a hindrance to the institutionalization of IGR. In Iraq, for example, quotas reserve 25 per cent of central and regional legislative seats for women which is what was reported to the United Nations, but the actual numbers were lower. Moreover, no women participated in IGR and no women were governors. Family law for Arab women went from reformed Shari’a law before Saddam to unreformed Shari’a law after. The delegation of family law to religious authorities makes future reform especially difficult. Quotas have varying impacts. In Pakistan, they produce a ‘mediocre’ rate of women in central government and an average of 18 per cent in regional governments. Although Pakistan had a (dynastic) woman president, there are no women leaders currently (see Chapter 18 in this volume). The extreme conflicts of partition, secession and civil war gave way to alternating periods of military dictatorship and electoral democracy. The 2013 election was the first time an elected government completed its term. But now Pakistan experiences violent conflict over secularization, militarism, police harassment and corruption, making it dangerous to participate in democratic campaigning, attend rallies, even vote, which thereby represses women’s participation. Moreover, organized women have little capacity to influence family law reform which is central to conflicts over secularization.

2.8 CONCLUSION The goal of this chapter was to show how effective Ostrom’s framework can be as the basis for explaining how IGR are ‘gendered’ and how they change over time, becoming increasingly institutionalized as conflict is more effectively managed and diversity is better accommodated. To test the use of the framework empirically, it was necessary to determine the conditions needed to facilitate the routinization of interactions among governments and then how IGR became institutionalized. This approach can open up the effectiveness of comparative studies of IGR by drawing on insights from existing gender/federalism research that focuses on representation, participation, leadership, conflict, violence, post-colonialism and militarism. It also will need to take into account the effects of gendered innovations like quotas and WPAs. The chapter focused on one field of policy-making – family law reform – but the patterns vary across policy types. Mapping women’s presence in IGR shows the frequent marginalization of women and of initiatives to advance gender equality. But the extent of power in various decision nodes of IGR differs depending on the degree of institutionalization. In multinational and multi-ethnic federations, representation of (spatially organized) diversities usually trumps representation of gender thereby fragmenting party and interest advocacy systems along territorial lines (Vickers 2013). Women legislators and women’s movement organizations (WMOs) can participate in institutionalized IGR, but central and regional leaders and senior bureaucrats usually dominate. WMOs also represent women and Htun and Weldon (2012) found positive correlations between a strong women’s movement and family law reform,8 but not between reforms and higher levels of women legislators. Celis et al. (2013) found that recent devolutions of power in Belgium and Scotland pushed WMOs toward the new regional governments and advocacy sites. In older federations, however, representational patterns display greater inertia although

How can comparative studies of federations be gendered?  29 they vary in different policy areas (Smith 2010; Haussman 2005) depending on formal and informal power sharing. Sawer (1990) and Lang and Sauer (2013) consider WPAs effective reform advocates in institutionalized IGR in mono-national Australia, Austria and Germany. But in multinational and multi-ethnic federations, WPAs have less access to IGR and generally less clout. In general, therefore, the framework Ostrom’s polycentric approach provides makes it possible to compare gender aspects of IGR in different types of federations and in different policy areas.

NOTES 1. An exception is Watts (2008). 2. The treaty of Westphalia (1788) established the principle of one religion per state as determined by its monarch, and the French Revolution added nationalism as what legitimized the state authority’s claims to a territory, and the monarch’s claims on behalf of his people. The revolution also legitimized women’s exclusion from public decision making and men’s control over their persons, property and children. 3. In Iraq, support for federalism was much undercut among Arab women when denominational consociation arrangements were imposed. This replaced the significant reforms of Shari’a family law they had achieved in the early Baath period. The consociational ‘Lebanese solution’ devolves authority over family law to each religious community. To this is a major disadvantage of federalism. 4. Territorial claims involve other factors such as prior occupation. But in The Second Treatise, Locke dismisses Indigenous claims arguing that they didn’t really ‘occupy’ the land – for example farm or fence their land – and were ‘nomadic’ and moved from winter and summer lands. 5. There may be a fourth type of IGR in post-conflict federations in which multi-level governments dominate, for example Ethiopia. 6. Htun and Weldon (2012, 8) maintain that reform ‘compels states to make family law… conform to universal principles of human rights… [from] IL’. They see ‘equality’ as same treatment for the sexes and only measure one system of law per state. Shanley (2012, 148) believes this promotes masculinist norms of traditional liberalism that treat ‘the self as freestanding and bounded, autonomy as self-sufficiency and rights as barriers against the intrusion of other individuals or the state’. She supports approaches that focus instead on equity, relationships, power hierarchies and institutions in marriage and motherhood. 7. The composite representation scale is made up of the percentage of women legislators in both houses of central governments and the average of women legislators in multi-level governments (both houses if bicameral) in CUs, plus the sex of central government leaders (prime ministers or presidents) and women governors in CUs. 8. Their categories discredit women’s movements that aren’t autonomous and (western) feminist. Vickers (2013a) theorizes that there are multiple women’s movements including those that choose to align with other movements, for example socialist, nationalist, etc.

REFERENCES Baines, Beverly and Ruth Rubio-Marin (eds) (2005), The Gender of Constitutional Jurisprudence, Cambridge: Cambridge University Press. Bang, H.P. and E. Sorenson (1999), ‘The Everyday Maker: A Challenge to Democratic Governance’, Administrative Theory and Praxis, 21, 7–37. Burgess, Michael (2006), Comparative Federalism: Theory and Practice, Abingdon: Routledge. Celis, Karen, Fiona Mackay and Petra Meier (2013), ‘Social Movement Organizations and Changing State Architectures: Comparing Women’s Movement Organizing in Flanders and Scotland’, Publius, 42 (1), 44–67.

30  Handbook on gender, diversity and federalism Chappell, Louise A. (2002), Gendering Government, Vancouver: University of British Columbia Press. Chappell, Louise A., Deborah Brennan and Kim Rubenstein (2012), ‘A Gender and Change Perspective on Inter-Government Relations’, in Paul Kildea, Andrew Lynch and George Williams (eds), Tomorrow’s Federation, Sydney: Federation Press, 228–45. Corwin, E.S. (1950), ‘The Passing of Dual Federalism’, Virginia Law Review, 36 (1), 1–23. Dalton, R.J. (2008), ‘Citizenship Norms and the Expansion of Participation’, Political Studies, 56 (1), 76–98. Erk, Jan (2010), Explaining Federalism, New York: Routledge. Gray, Gwendolyn (2010), ‘Federalism, Feminism and Multilevel Governance: The Elusive Search for Theory?’, in Melissa Haussman, Marian Sawer and Jill Vickers (eds), Federalism, Feminism and Multilevel Governance, London: Ashgate, 19–33. Haussman, Melissa (2005), Abortion Politics in North America, Boulder: Lynne Rienner. Hayes, Bernadette C. and Ian McAllister (2012), ‘Gender and Consociational Power-Sharing in Northern Ireland’, doi​.org/​10​.11771019251211245170; republished (2013), International Political Science Review, 34 (2), 123–39. Hearn, Jonathan (2006), Rethinking Nationalism: A Critical Introduction, New York: Palgrave Macmillan. Htun, Malta and S. Laurel Weldon (2012), Sex Equality in Family Law: Historical Legacies, Feminist Activism, and Religious Power in 70 Countries, World Development Report, Background Paper: Global Institute for Gender Research, Purdue University. Hudson, Valerie M, Donna Lee Bowen and Perpetua Lynne Nielsen (2011), ‘What Is the Relationship Between Inequality in Family Law and Violence against Women’, Politics and Gender, 7 (4), 453–92. Kenyon, Daphne and John Kincaid (eds) (1991), Competition among States and Local Governments: Efficiency and Equity in American Federalism, Washington, DC: Urban Institute Press. Kincaid, John (1988), ‘State Constitutions in a Federal System’, Annals of the American Academy of Political Science, 686 (March), 12–22. Krook, Mona L. (2009), ‘The Diffusion of Electoral Reform: Gender Quotas in Global Perspective’, paper presented to the European Consortium of Political Research Joint Sessions, April. Lang, Sabine and Birgit Sauer (2013), ‘Does Federalism Impact Gender Architectures: The Case of Women’s Policy Agencies in Germany and Austria’, Publius, 42 (1), 68–89. Nedelsky, Jennifer (2011), Law’s Relations: A Relational Theory of Self, Autonomy, and Law, New York: Oxford University Press. Norris. P. (2002), Democratic Phoenix: Reinventing Political Activism, Cambridge: Cambridge University Press. Ostrom, Elinor (2005), Understanding Institutional Diversity, Princeton: Princeton University Press. Sawer, Marian (1990), Sisters in Suits, Sydney: Allen and Unwin. Shanley, Mary Lyndon (2012), ‘Review of Jennifer Nedelsky, Law’s Relations: A Relational Theory of Self, Autonomy, and Law’, Politics and Gender, 8 (1), 148–51. Schattsneider, E.E. (1960), The Semi Sovereign People, Chicago: Holt, Rinehart and Winston. Smith, Miriam (2010), ‘Federalism and LGBT Rights in the US and Canada’, in Melissa Haussman, Marian Sawer and Jill Vickers (eds), Federalism, Feminism and Multi-Level Governance, Farnham: Ashgate, 97–110. Suberu, Rotini and Larry Diamond (2002), ‘Institutional Design, Ethnic Conflict Management and Democracy in Nigeria’, in Andrew Reynolds (ed.), The Architecture of Democracy: Constitutional Design, Conflict-Management and Democracy, Oxford, Oxford University Press, 327–54. Urbinati, Nadia (2006), Representative Democracy, Chicago: University of Chicago Press. Vickers, Jill (1994), ‘Why Should Women Care about Federalism?’, in Douglas M. Brown and Janet L. Hiebert (eds), The State of the Federation, Kingston: McGill-Queen’s University Press, 135–52. Vickers, Jill (2013), ‘Is Federalism Gendered?’, Publius, 43 (1), 1–23. Vickers, Jill (2013a), ‘Territorial Pluralism and Family-Law Reform: Conflicts between Gender and Culture Rights in Federations North and South’, Politikon: South African Journal of Political Studies, 40 (1), 57–82. Vickers, Jill (2012), ‘Gender Implications of Federalism in Post-Conflict Zones’, for UN Women, unpublished report.

How can comparative studies of federations be gendered?  31 Vickers, Jill and Annette Isaac (2012), The Politics of Race: Canada, the United States and Australia, 2nd ed., Toronto: University of Toronto Press. Watts, R. L. (2005), ‘Comparative Conclusions’, in Akhtar Majeed, Ronald L. Watts and Douglas M. Brown (eds), Distribution of Powers and Responsibilities in Federal Countries, Montreal: McGill-Queen’s Press for the Forum on Federations, 322–50. Watts, R.L. (2008), Comparing Federal Systems, Kingston: McGill-Queen’s University Press. Wright, Deil S. (1974), ‘Intergovernmental Relations: An Analytical Overview’, Annals of the Political and Social Science Journal, 416 (1), 1–16.

Data McDermott, Rose (2007), ‘Inequity in Family Law’, Codebook (MULTIVARSCALE-3), July. UN Women (2011–12), Report, In Pursuit of Justice: Progress of the World’s Women, accessed May 15, 2012 at http://​progress​.unwomen​.org Womanstats Database, accessed May 25–28 2012 at http://​womanstats​.org Womanstats Database, Codebook, accessed June 2–3, 2012 at http://​womanstats​.org/​CodebookCurrent​.htm Worldwide guide to women in leadership, accessed June 2, 2012 at www​.guide2womanleaders​.com

3. Does federalism support policy innovation for children and families? Canada in comparative context Linda A. White

3.1 INTRODUCTION This chapter examines Canadian national and subnational governments’ policies and programs that support work and family life – key measures to achieve gender equality in employment and the family – and reviews their record of achievement. The counterfactual question is whether Canadian public policies to support work and family life would look different if Canada had a unitary as opposed to a federal system of government. Some scholars have argued that subnational governments act as laboratories of democracy and innovation in that they can respond in varying ways to citizen preferences and differing subnational contexts; the lessons from those policy responses can then be emulated by other subnational governments or be scaled to the national level (Bednar 2014; Breton 1987; Chappell and Curtin 2012; Karch 2007; Weingast 1995). Other scholars argue that ‘a federal system divides the general will and thus limits chances for large-scale democratic reform’ (Erk 2006, 106). Subnational political actors may act as veto points and veto players for national governments’ reform agendas or they may simply duplicate policy efforts (Erk 2006, 107, 110). Other scholars note considerable variation regarding federalism’s effects depending on the policy area observed and target population, particularly with regard to gender (Vickers 2018). Michener (2019, 11) notes, ‘more decentralized arrangements allow for discretion that breeds inequality’ for racialized minorities in the United States (US); but Smith (2010) notes federalism’s varying track record regarding LGBTQ rights in Canada and the US. Still others note that federal institutions are but one of the variables amongst a host of institutional factors that affect policy, including degrees of financial centralization, structures of parliamentary institutions including the substantive powers of second chambers to veto legislation originating in another legislative chamber, the ease by which constitutional provisions can be amended and the political coalitions that derive from electoral rules (Gray 2010, 31). In addition to those institutional variables, I argue that one cannot answer this counterfactual question about the role of federalism in supporting gender equality in areas related to work and family life without also reflecting on the role of ideas and norms in shaping policy choices and the institutional feedback effects of those policies. Canada’s strong liberal welfare state tradition and liberal ideas regarding social policy and social assistance, which encourage private and market-based and gendered systems of care, play key roles in shaping contemporary policy responses to work and family life and particularly the generosity of those investments. Canada shares a common history with other liberal welfare states, including Australia, New Zealand and the US (Esping-Andersen 1990). Liberal welfare states in general tend to be much less generous than continental European and Scandinavian welfare states (Lewis 1992; O’Connor 32

Does federalism support policy innovation for children and families?  33 et al. 1999; Sainsbury 1999), even though in recent decades some liberal welfare states have made significant social investments (e.g. Waldfogel 2010). Despite those investments, liberal welfare states also tend to utilize private, including for-profit agents to deliver care more than Scandinavian social democratic welfare states and continental European welfare states (Morgan 2005). The question is to what extent Canada’s social policy – rooted in the division of jurisdiction between federal and provincial/territorial governments – simply mimics other liberal welfare states in terms of generosity of provision or whether federalism further undermines the already limited nature of liberal welfare funding and provision. The chapter demonstrates that, in general, policies and programs in Canada to reconcile work and family life tend to be far less generous than in other Organisation for Economic Co-operation and Development (OECD) countries and indeed, in some cases, even some other liberal welfare states. To uncover why this is so, it draws on historical institutionalist theories of institutional evolution and change as well as rational institutional insights regarding veto points and veto players (Tsebelis 1995), along with feminist analyses of ideas and social policy (Orloff 1993; 2006) to demonstrate that both federalism and a strong liberal welfare tradition – which encourages private and market-based and gendered systems of care – affect the generosity of those investments. Federalism interacts with other institutional veto points and players within a strong liberal welfare state tradition so as to reinforce processes of incremental innovation that leads to comparative undersupply of child care and other family policies. This chapter draws on the author’s previous empirical research conducted on social investment policies and programs in liberal versus other welfare states in the OECD (White 2012; White and Prentice 2019); theoretical work on coordination challenges over public goods provision (White 2014); performance versus effectiveness considerations regarding inter-governmental relations in the area of social policy and particularly child-care policies and programs (Friendly and White 2012); and the institutional and ideational aspects of early childhood education and care (ECEC) policy change (White 2017). It examines four areas of social investment in Canada that also support gender equality by helping to balance work and family: maternity and parental leave, child and family tax benefits and early learning and child care – both pre-kindergarten child-care policies and programs and kindergarten. Examining policy developments in these four cases helps uncover processes of policy stability and change identified in the historical institutionalist literature, namely drift, conversion, layering and replacement (Hacker 2004; Hacker et al. 2015) and the veto points and veto players that federalism creates, particularly around social policy provision. Additionally, it draws on policy process theories of policy change to attend to factors that anticipate big versus more incremental change (Baumgartner and Jones 1993; Tuohy 2018). It finds that, in policy areas in Canada that require inter-governmental cooperation, institutional processes of drift and displacement dominate. This finding is not surprising, given the number of veto points and veto players involved in institutions of executive federalism. More surprisingly, however, even in policy areas that require no inter-governmental cooperation, incremental evolutionary processes are observed as well. This is a surprising finding, given that one would expect if the matter lies exclusively within a single order of government that more ‘big bang’ policy change could occur. Yet that has largely not been the case in an area of social investment that is exclusively provincial – education – nor in an area of social investment that is exclusively federal – maternity and parental leave benefits. Even in those areas, governments across partisan stripes have generally demonstrated an absence of political will to radically expand provision.

34  Handbook on gender, diversity and federalism The effect of these largely incremental processes of layering and drift and the legacies of a liberal welfare state tradition means significant underinvestment in policies and programs that research demonstrates are crucial in supporting gender equality (Detraz and Peksen 2018), including closing the gender pay gap. Research has found that women’s earnings generally keep pace with men until the birth of a woman’s first child, after which pay gaps emerge (Kleven et al. 2018). Mothers may change jobs or reduce hours to balance work with care responsibilities that research shows fall disproportionately on women (Budig et al. 2015; Moyser and Burlock 2018). And research by Goldin (2014) has found that many of the most highly remunerated jobs reward those who can put in long hours. Policies such as child care and job-protected paid leave are thus crucial in supporting working mothers (Olivetti and Petrongolo 2017; Waldfogel 1998), ensuring maternal health does not suffer (Butikofer et al. 2018), and encouraging fathers or second caregivers to contribute more to caregiving (Patnaik 2018). The next section provides details regarding the complex federal-provincial-territorial social policy architecture in Canada. It also documents levels of investment in child and family tax benefits, maternity and parental leave benefits and early learning and child-care policies and programs in comparison to other OECD countries, including comparator liberal welfare states (Australia, New Zealand, the United Kingdom (UK) and the US). It then presents a theoretical framework to examine the relationship between federalism and the liberal welfare state tradition and their combined impact on social investment. The chapter concludes by reflecting on these findings for gender equality.

3.2

SOCIAL INVESTMENT IN POLICIES TO SUPPORT WORK AND FAMILY LIFE: CANADA IN COMPARATIVE CONTEXT

Constitutional authority over social policy is complex in Canada, even in matters that formally fall within the exclusive authority of one order of government. Maternity and parental leave benefits fall under the exclusive authority of the federal government as part of federal authority over employment insurance under section 91 (2A) of the Constitution Act, 1867 (Human Resources Development Canada 1994). As Robson (2017, 3–4) notes, maternity benefits were ‘grafted onto’ a national wage insurance program in 1971, itself added as a constitutional amendment in 1940 with the agreement of the provinces in order to combat high levels of unemployment during the Great Depression. These benefits, along with adjustments in provincial labor laws, provided wage replacement, in the earlier decades to mothers and, later on, to second parents as well during a period of job-protected leave. The program has been expanded incrementally to include other eligible groups – such as the self-employed who opt into the program – and in terms of the number of weeks of benefits. In the area of maternity and parental leave, and in other related policies and programs including child care, Quebec is an outlier. It is thus important to note that Quebec has a separate Parental Insurance Program (QPIP), introduced in 2006 after a successful constitutional challenge to the federal government’s refusal to allow a ‘made in Quebec’ program.1 The QPIP is more generous than the federal program (Québec Ministre du Travail – Emploi et Solidarité Sociale 2018; Robson 2017). It covers a larger share of workers – including part-time and self-employed workers – and allows parents to choose between a basic plan that covers

Does federalism support policy innovation for children and families?  35 a longer leaver period (32 weeks) but at a lower remuneration rate (70 per cent of earnings up to a maximum of seven weeks and 55 per cent of earnings up to a maximum of 25 weeks), or a special plan that comprises a shorter leave period (25 weeks) at a higher wage replacement rate (70–75 per cent up to a maximum) (Friendly et al. 2018, 44). Federal maternity and parental leave, in contrast, cover only employees eligible for federal employment insurance (McKay et al. 2016) or, since 2011, those who are self-employed and opt into the program (Robson 2017, 4). Federal benefits provide 15 weeks of maternity leave benefits and, as of 2018, either standard parental leave benefits (35 weeks at 55 per cent of previous salary to be taken by one parent or shared between them) or extended parental leave benefits (up to 61 individual or shared weeks at 33 per cent of previous salary) (Government of Canada 2018). While these extended benefits added in 2018 make federal parental leave length similar to the Quebec program, the wage replacement rates are capped at 55 per cent of average weekly insurable earnings up to a maximum amount of 547 Canadian dollars per week (Government of Canada 2018), whereas the QPIP wage replace rate ranges from 55 to 75 per cent of earning with a higher cap (Robson 2017, 6). With regard to education, the Constitution Act 1867 again appears to rather straightforwardly grant authority over education to provincial governments under section 93. Generally, that has meant that the federal government is largely absent from provincial education policy-making and does not fund or regulate primary and secondary education. There are some exceptions, however. The federal government is responsible for the provision of social services for specific populations in Canada, including First Nations on reserve, Inuit and military families and new immigrants and refugees (White 2014, 170). The federal government is responsible for funding schools on reserves, although provincial and territorial governments are also involved in providing educational services to First Nations communities who do not live on reserve. The federal government is also involved in funding tertiary education (Canada, Office of the Parliamentary Budget Officer 2016). Even more complex are policy areas that fall largely under provincial jurisdiction but have an inter-governmental dimension because of institutions of fiscal federalism (Friendly and White 2012; White 2014). As many constitutional scholars have noted, the governance challenge in Canada’s constitutional architecture is the fundamental incongruence between jurisdictional responsibilities and sources of revenue held by the two orders of government. Social and health policy lie generally within the substantive jurisdiction of provincial governments, but the greater means to finance those programs lies at the federal level. The more restrictive revenue generating tools open to the provinces – and the huge variation in the taxation capacity of provinces – means that the federal government has been involved in the creation and support of largely provincial and territorial social programs – including child care and social assistance – through the exercise of the federal spending power. Over the years, this imperative to coordinate revenue collection and expenditure in social and health policy has generated a great deal of acrimony in federal-provincial-territorial inter-governmental relations (Banting 2012; Friendly and White 2012; White 2014). Questions of optimal policy design get lost in jurisdictional concerns and inter-governmental bargaining. The result, as demonstrated below, is significant underinvestment in a number of programs that benefit children, families and maternal employment. In terms of federal and subnational government spending on family benefits – which includes cash transfers to families with children, services for children and financial support for families through the tax system – Canada along with the US spends well below the OECD

36  Handbook on gender, diversity and federalism

Source: OECD Family Database Chart PF1.1.A: www​.oecd​.org/​els/​family/​database​.htm

Figure 3.1

Public expenditure on family benefits by type of expenditure, in percentage of gross domestic product, 2015 or latest available, select OECD countries

average (see Figure 3.1). In contrast, the UK – typically categorized as a liberal welfare state – is the biggest spender among OECD countries, with New Zealand and Australia governments also above-average spenders (OECD, Social Policy Division 2018, PF1.1).2 With regard to maternity and parental leave benefits, Canada, along with other liberal welfare states, all cluster around the bottom in terms of generosity of maternity leave replacement rates compared to other OECD countries (OECD, Social Policy Division 2018, PF2.4). The US is an outlier amongst all OECD countries in that it provides no national paid parental leave program. Government spending on child-care programs in Canada, again with the exception of the province of Quebec, arguably lags behind both other liberal as well as continental European welfare states, even as spending on kindergarten has expanded with the introduction of universal kindergarten/pre-kindergarten in many provinces. While lack of comparative data inhibits the ability to say definitively that Canadian governments are one of the lowest spenders on child care – the OECD has ceased reporting Canadian data because of the poor quality of that ECEC data (Parkin 2015, 9) – given that most OECD countries publicly finance and provide child-care services almost universally to children as of age 3, and provinces and territories only do so by way of full-day kindergarten as of age 5 (or age 4 in Ontario and Nova Scotia), we can surmise that finance and provision rates are lower. We also know that access to high-quality affordable child care varies enormously by province, by municipality and even by neighborhood (Macdonald and Friendly 2017; Prentice and White 2018). National data tracking federal/provincial/territorial spending over time and across provinces and territories also demonstrates Quebec’s outsized ECEC spending since the end of the 1990s (Friendly et al. 2018: table 13, 168) (see Table 3.1). But we also know how much licensed capacity there

Does federalism support policy innovation for children and families?  37 is (for about 28 per cent of children aged 0–6 as of 2016) (Friendly et al. 2018, 146). These are far from enrolments of about 70–100 per cent of kids age 3 in other OECD countries (see Figure 3.2). In the area of kindergarten, again, poor data quality means that separate estimates of kindergarten and primary education spending are hard to find. But in terms of primary, secondary and tertiary education spending, Canada is close to average. In contrast, the US and Australia are below average. But Canada spends less than two other liberal welfare states: the UK and New Zealand (OECD, Social Policy Division, PF1.2.A) (see Figure 3.3).

3.3

THE IMPACT OF FEDERALISM AND A LIBERAL WELFARE STATE TRADITION ON SOCIAL INVESTMENT POLICIES AND PROGRAMS

The above review of federal and provincial/territorial spending and provision reveals that while social investment patterns in Canada mimic other major liberal welfare states in some areas of child and family policy, they do not in others. It is thus important to examine how federalism interacts with other factors and how those together lead to particular social investment patterns and particular forms of institutional evolution and change. Historical institutionalist scholars such as Hacker (2004, 248; Hacker et al. 2015) have identified four processes of institutional evolution: layering, conversion, drift and revision that emerge from the number of institutional veto players in a policy field as well as the number of internal barriers to policy change. As Hacker (2004, 248) argues, policy change typically involves ‘internal’ shifts without formal revision such as layering, where ‘proponents of change work around institutions… “by adding new institutions rather than dismantling the old”’, converting institutions to new purposes rather than dismantling them, or allowing institutions to erode through atrophy (institutional drift). To effect change through drift, actors ‘need only prevent the updating of existing rules’ (Hacker et al. 2015, 180) or they may actively attempt to block adaptation of rules to changing circumstances (Hacker 2004, 248). Formal revision, reform, replacement or elimination of existing institutions happens much less frequently in social policy (Hacker 2004), leading to stubborn persistence of policies despite changing economic and social contexts. These observations are not meant to suggest an overly deterministic policy process; rather, change can occur in particular moments when new sets of actors with new policy models ‘call into question existing, previously taken-for-granted organizational forms and practices’ (Streeck and Thelen 2005, 19). In some moments, those challenges can be so fundamental as to lead to institutional displacement. Those ‘big bang’ changes, characterized by large-scale and fast-paced reforms, are relatively rare in policy-making, however (Tuohy 2018, 17).3 Big bang attempts at reform are most likely in Westminster parliamentary systems where ‘actors have consolidated authority’ but face partisan competition (Tuohy 2018). But – given the strategic judgments of policy actors that they could improve their positions of influence in the future because of independent bases of power – the strategy political actors are more likely to pursue is gradual and piecemeal incremental adjustment (Tuohy, 2018). Given the focus on getting to and maintaining agreements in federal systems (Bakvis and Skogstad 2012), incremental change is much more typical. If actors in those winning coalitions with independent power bases discern that they are unlikely to improve their bases of power, they

98.68

NA

4.15

55.80

2.29

NA

2.44

761.96

British Columbia

Northwest Territories

Nunavut

Yukon

Canada

Source: Friendly et al. 2018.

67.62

66.61

Alberta

45.20

995.28

1.71

12.71

42.15

203.70

541.80

140.73

420.14

Quebec

Ontario

12.31

3.20

3.65

Manitoba

11.84

11.42

Nova Scotia

New Brunswick

Saskatchewan

1.68

2.77

Prince Edward Island

2.98

1995

1.67

1992

1,048.58

4.76

NA

2.27

128.87

54.30

15.75

45.19

470.50

299.86

5.52

15.69

2.58

3.3

1998

1,889.80

4.44

1.87

1.60

164.56

57.50

16.39

62.88

451.50

1,092.43

11.82

12.89

4.23

7.75

2001

2,401.88

5.20

1.79

2.54

140.73

53.60

19.64

73.00

497.40

1,560.00

13.90

19.77

4.68

9.64

2003/2004

2,940.14

5.41

2.32

2.54

176.11

72.47

22.77

86.33

534.10

1,678.88

22.48

23.70

4.73

12.32

2005/2006

3,087.44

6.41

2.47

2.54

216.74

105.73

47.13

105.98

780.40

1,730.57

26.24

37.15

6.23

19.84

2007/2008

3,496.53

7.36

2.78

2.54

227.51

190.63

53.72

116.55

801.80

1,998.72

28.94

39.03

6.43

20.52

2009/10

3,670.67

7.66

3.03

2.54

227.15

257.55

62.65

134.35

865.10

1,998.72

35.00

43.22

12.47

21.22

2011/12

4,273.37

7.66

2.61

4.48

227.43

263.09

64.84

139.44

960.10

2,488.41

38.74

46.23

12.12

21.22

2013/14

Total allocations for regulated child care (millions unadjusted dollars, rounded) provinces/territories/Canada (1992–2015/16)

Newfoundland

Table 3.1

4,595.88

6.26

3.66

4.50

231.40

263.84

64.49

156.64

1,169.78

2,559.07

42.21

42.89

11.82

39.31

2015/16

38  Handbook on gender, diversity and federalism

Does federalism support policy innovation for children and families?  39

Source: OECD Family Database Chart PF3.2.E: www​.oecd​.org/​els/​family/​database​.htm

Figure 3.2

Enrolment rates for 3–5 year olds in pre-primary education or primary school, 2014 or latest available, select OECD countries

Source: OECD Family Database Chart PF1.2.A: www​.oecd​.org/​els/​family/​database​.htm

Figure 3.3

Public expenditure on primary, secondary and post-secondary non-tertiary education as percentage of gross domestic product, 2013, select OECD countries

40  Handbook on gender, diversity and federalism may be more willing to reach consensus on the broad parameters of policy change (blueprint strategy). Finally, if strategic actors anticipate some deterioration of their position of influence in the future, they might be willing to engage in multiple simultaneous adjustments to policies/ institutions as is the case in unstable coalitions (mosaic strategy) (Tuohy 2018). In the next section, I examine the actor strategies and forms of institutional evolution and change in the four policy areas. The default strategy observed in federal and provincial policy action appears to be incremental innovation that results from processes of institutional layering. Policy-makers appear risk averse, making incremental adjustments to policy settings, rather than wholesale rethinking of the policy architecture needed to respond to new social risks. Such an incremental reform strategy is not surprising in policy areas such as child care and family benefits where complex federal financing arrangements have necessitated inter-governmental cooperation and thus the potential for multiple veto points in any process of reform (Friendly and White 2012). Child care and family benefits thus exhibit characteristics of institutional drift – where the social architecture established in the 1960s under the Canadian Assistance Plan has not evolved to keep up with new social risks (Granofsky et al. 2015). Yet, even in policy areas that require no inter-governmental cooperation, I observe more incremental processes of layering and conversion rather than formal policy revision. This is surprising, given that one would expect if the matter lies exclusively within a single order of government that more big bang-type policy change could occur. I briefly review the dominant institutional processes observed in each of the four policy areas. 3.3.1 Kindergarten Kindergarten programs, as with primary and secondary education, lie wholly within provincial jurisdiction. Unlike the comparator policy area of health, no federal department of education exists and the federal government has rarely ‘crossed the threshold of the school’ to finance provincial education systems (Wallner 2014). Provincial governments thus have full discretion to act and they have generally created highly centralized systems of education administration. Provincial teachers’ unions have generally been supportive of education reforms that expand the system. And yet, the biggest innovation in early years education has been through an institutional process of layering via the expansion of part-day kindergarten programs to full-day (typically 9 am–3 pm or some variant) in seven of ten provinces and Yukon territory (as of 2018). In only two provinces (Ontario and Nova Scotia) has the program been extended to include 4 year olds as well as 5 year olds, although the Quebec government has recently announced plans to expand programs to 4 year olds throughout the province (Shingler 2019). Some other provinces provide targeted programs to children or neighborhoods deemed to be at risk (Friendly et al. 2018). But in the face of the emergence of the new knowledge economy and imperative to reform education to respond to the new world of work (Iversen and Soskice 2015), adding on a few extra hours to a part-day program is a social investment strategy of incremental innovation within existing institutional arrangements. The recent investments do not bring Canada’s level of investment up to those in other OECD countries or the liberal welfare states of New Zealand and the UK (White 2017). As noted further below, government support for child care for children younger than kindergarten age – outside of Quebec – has not expanded significantly over the years, even though parental employment patterns have changed significantly. Strong liberal welfare state norms

Does federalism support policy innovation for children and families?  41 remain intact that regard child care as a family responsibility first and foremost, with governments stepping in only to support low-income families through the child-care subsidy system, or by granting tax breaks to working parents who are expected to purchase care in the market. Significant barriers are in place – both ideational and institutional – to develop integrated programs of early learning and child care for children of all families who need or want it, as policy experts have recommended (McCain and Mustard 1999; Pascal 2009). 3.3.2

Maternity/Parental Leave

As mentioned above, maternity and parental leave benefits are ostensibly an area of federal jurisdiction (except in Quebec since 2006) where the federal government has full discretion to act regarding benefits provision. And yet the federal government has also engaged in a social investment strategy of incremental innovation within existing institutional arrangements – and indeed resisted the Quebec government’s efforts at formal revision for years prior to the Quebec government’s constitutional challenge. Incremental adjustments to eligibility and benefit levels have typically been layered onto the architecture of federal employment insurance. The QPIP ‘made in Quebec’ parental leave program, in addition to firms’ employee wage top-ups and other additional benefits, add additional layers of coverage (what Tuohy (2018) might identify as a mosaic strategy of change). But further and more substantive policy innovation to vastly expand benefit levels would likely require decoupling maternity and parental leave benefits from the federal employment insurance benefit levels and creating a separate program (Robson 2017), which federal governments of all partisan stripes have not undertaken. This reticence on the part of the federal government to expand benefits and eligibility rules significantly stands in sharp contrast with social investment efforts in a number of other OECD countries. There, significant social investments to mobilize human capital lead some researchers to argue that government efforts around social investment policies and programs represent paradigmatic change (Hemerijck 2018). Not so in Canada. 3.3.3

Child and Family Benefits and Social Assistance

Policy areas that in the past have been characterized as involving inter-governmental cooperation efforts have seen those efforts wane. While both the federal and provincial governments can provide tax relief to families,4 provinces and territories are responsible for delivering social assistance programs. The federal government has traditionally provided social transfers to provinces but the popularity of those inter-governmental transfers – in the view of both federal and provincial governments – has waxed and waned. The predominant institutional process has been incremental innovation that exemplifies layering onto existing provincial social programs. Over time, we can observe institutional processes of drift, displacement and atrophy. In previous decades of inter-governmental cooperation, federal family allowance programs and other provincial targeted programs such as mothers’ allowances were amalgamated into the Canada Assistance Plan, established in 1966. In 1993, the federal government abolished family allowances and consolidated a number of benefits into the Canada Child Tax Benefit. In 1995, the federal government abolished the Canada Assistance Plan and with it conditionality with regard to social assistance and created a block fund, the Canada Health and Social Transfer. In 2015, the federal government again bundled a number of federal programs

42  Handbook on gender, diversity and federalism

Source: OECD Family Database Chart CO2.2.A: www​.oecd​.org/​els/​family/​database​.htm

Figure 3.4

Relative income poverty rate (percentage) for the total population and for children (0–17 year olds), 2016 or latest available year, select OECD countries

to create the current federal child tax benefit (Milligan 2016). The lack of systematic coordination between federal, provincial and territorial governments means, though, that, overall, Canada’s substantive investments in family benefits are much lower than many other OECD countries, including liberal welfare state comparators (see Figure 3.1). Canada’s child poverty rates are also higher than the OECD average (see Figure 3.4). Significant future innovation would necessitate moving beyond incrementalism to coordinate these disparate legal and policy regimes (White 2014). Current trends, however, are in the opposite direction. 3.3.4

Child Care

Child-care policies and programs are ostensibly an area of provincial jurisdiction. Yet, from the 1960s onward, the federal government provided some funds to provincial and territorial governments, mainly in the form of targeted support to low-income families. The child-care expense deduction also permits families to deduct child-care expenses from federal income tax. Efforts at more ‘big bang’ coordinated inter-governmental policy reforms in the 1980s, 1990s and 2000s failed (Friendly and White 2012). Availability of child-care spaces has grown only incrementally in all provinces and territories save for in the province of Quebec, despite parental need for services. A patchwork of costly programs has led to large disparities in access (Macdonald 2018; Macdonald and Friendly 2017). The two orders of government in recent years have not coordinated to supply services in response to these new social risks leading to policy drift. The heavy reliance on markets to deliver programs – and the recent

Does federalism support policy innovation for children and families?  43 incursion of multinational companies into child-care delivery (Monsebraaten 2017) – may even signal displacement of policy delivery. In stark contrast, one of the most dramatic sets of programmatic investments over the past decade has occurred in Germany – another federal system – where a number of social investment policies to modernize and ‘feminize’ the welfare state have led to significant investments in and expansion of child-care policies and programs (Morgan 2013, 74). Amongst the changes was a 2004 federal law that expanded financing to Lander and local authorities to double the number of child-care spaces and to expand school from part day to full day (Morgan 2013, 96). A 2009 agreement with Landers to pass laws that mandated all children ages 1–2 have access to a child-care space by 2013 in turn committed federal financing to support the creation of center spaces (Morgan 2013, 98). While these policies have met some resistance from conservative party members of the Christian Democratic Union, that resistance has not derailed efforts and work-family policies continue to expand. Most recently, the City of Berlin completely abolished child-care fees for children younger than school age, including those under age 1 (Connolly 2018). In other words, when political will is present, federal systems can accomplish large-scale policy innovations.

3.4 CONCLUSION This chapter offers a theoretically innovative account for Canada’s underinvestment in areas related to early years and family policy investments that support maternal employment and balancing work and family life. The chapter demonstrates, first, that federalism, and the need for inter-governmental engagement in the areas of family benefits, including transfers to low-income Canadians, and child care, can account for the incremental and path-dependent processes of policy change observed. Yet, federalism alone cannot account for the underinvestment in the areas of maternity and parental leave and kindergarten, compared to other OECD countries, where Canada is a laggard despite the lack of an inter-governmental component in those policy areas. On those matters, Canada’s liberal welfare tradition, and with it the gendered assumptions about care, may account for the underinvestment. Thus, both explanatory variables are important. Second, the chapter provides a response to the question of to what extent provinces and territories as subnational governments act as laboratories of innovation, particularly for emergent policy matters such as social investment strategies in response to new social risks. This chapter demonstrates that, in Canada, both national and subnational investments in policies and programs to support children and to help families balance work and family life fall short compared to other OECD countries and even other liberal welfare states, outside of the US. Moreover, subnational governments have not exhibited much inter-provincial ‘learning’. The Quebec government’s generous system of family benefits, maternity and parental leave benefits and state-subsidized child care (Tougas 2002) has not been emulated by other provinces and territories. And only two other provinces – Nova Scotia and now Quebec – have emulated the Ontario government’s inclusion of 4 year olds in full-day kindergarten. The result of Canada’s relative underinvestment in these policy areas for gender equality is clear. As Susan Prentice and I (2019) argue elsewhere, child-care and family policies such as maternity and parental leave are important policy interventions that can support maternal employment, especially for single-parent families, newcomers to Canada, families with chil-

44  Handbook on gender, diversity and federalism dren with special needs and families living in poverty. These are important measures to stave off social exclusion. Canada’s relative underinvestment in these areas suggests a mismatch between rhetorical commitment to gender equality and the reality on the ground.

NOTES Reference re: Employment Insurance Act (Can.), ss. 22 and 23, 2005 S.C.C. 56. While the Quebec Court of Appeal ruling – that declared the maternity and parental leave provisions of the federal Employment Insurance Act an unconstitutional intrusion in an area that falls exclusively within provincial jurisdiction – was overturned by the Canadian Supreme Court, the appeal court ruling prompted the federal government to agree to transfer funds to the Quebec government to help finance its own program. 2. For research that documents the UK’s dramatic shift in family benefits spending see, for example, Waldfogel (2010). 3. See also Baumgartner and Jones’ (1993) punctuated equilibrium model of policy change. 4. Given space limitations, only federal benefits are reviewed. 1.

REFERENCES Bakvis, Herman and Grace Skogstad (eds) (2012), Canadian Federalism: Performance, Effectiveness and Legitimacy, 3rd ed., Toronto: Oxford University Press Canada. Banting, Keith G. (2012), ‘The Three Federalisms Revisited: Social Policy and Intergovernmental Decision-Making’, in Herman Bakvis and Grace Skogstad (eds), Canadian Federalism: Performance, Effectiveness, and Legitimacy, Toronto: Oxford University Press Canada, 34–62. Baumgartner, Frank and Bryan D. Jones (1993), Agendas and Instability in American Politics, Chicago: University of Chicago Press. Bednar, Jenna (2014), ‘Subsidiarity and Robustness: Building the Adaptive Efficiency of Federal Systems’, in James E. Fleming and Jacob Levy (eds), NOMOS LV: Federalism and Subsidiarity, New York: New York University Press, 231–56. Budig, Michelle J., Joya Misra and Irene Boeckmann (2015), ‘Work–Family Policy Trade-Offs for Mothers? Unpacking the Cross-National Variation in Motherhood Earnings Penalties’, Work and Occupations, 43 (2), 119–77. Breton, Albert (1987), ‘Towards a Theory of Competitive Federalism’, European Journal of Political Economy, 3 (1–2), 263–329. Butikofer, Aline, Julie Riise and Meghan Skira (2018), ‘The Impact of Paid Maternity Leave on Maternal Health’, NHH Department of Economics Discussion Paper No. 4, accessed July 30, 2019 at https://​ papers​.ssrn​.com/​sol3/​papers​.cfm​?abstract​_id​=​3139823 Canada, Office of the Parliamentary Budget Officer (2016), Federal Spending on Postsecondary Education, Ottawa: PBO. Chappell, Louise and Jennifer Curtin (2012), ‘Does Federalism Matter? Evaluating State Architecture and Family and Domestic Violence Policy in Australia and New Zealand’, Publius, 43 (1), 24–43. Connolly, Kate (2018), ‘Berlin Abolishes Kindergarten Fees in German First’, Guardian, August 1, accessed July 30, 2019 at www​.theguardian​.com/​world/​2018/​aug/​01/​greens​-among​-critics​-as​-pre​ -school​-berliners​-get​-free​-childcare Detraz, Nicole and Sursun Peksen (2018), ‘“Women Friendly” Spending? Welfare Spending and Women’s Participation in the Economy and Politics’, Politics and Gender, 14 (2), 137–61. Erk, Jan (2006), ‘Review: Does Federalism Really Matter?’, Comparative Politics, 39 (1), 103–20. Esping-Andersen, Gosta (1990), The Three Worlds of Welfare Capitalism, Princeton: Princeton University Press. Friendly, Martha, Elise Larsen, Laura Feltham, Bethany Grady, Barry Forer and Michelle Jones (2018), Early Childhood Education and Care in Canada 2016, Toronto: Childcare Resource and Research Unit.

Does federalism support policy innovation for children and families?  45 Friendly, Martha and Linda A. White (2012), ‘“No-Lateralism”: Paradoxes in Early Childhood Education and Care Policy in the Canadian Federation’, in Grace Skogstad and Herman Bakvis (eds), Canadian Federalism: Performance, Effectiveness and Legitimacy, 3rd ed., Toronto: Oxford University Press Canada, 183–202. Goldin, Claudia (2014), ‘A Grand Gender Convergence: Its Last Chapter’, American Economic Review, 104 (4), 1–30. Government of Canada (2018), EI Maternity and Parental Benefits: Overview, accessed July 30, 2019 at www​.canada​.ca/​en/​services/​benefits/​ei/​ei​-maternity​-parental​.html Granovsky, Thomas, Miles Corak, Sunil Johal and Noah Zon (2015), Renewing Canada’s Social Architecture, Toronto: Mowat Centre. Gray, Gwendolyn (2010), ‘Federalism, Feminism and Multilevel Governance: The Elusive Search for Theory?’, in M. Haussman, M. Sawer and J. Vickers (eds), Federalism, Feminism, and Multilevel Governance, Vermont: Ashgate. Hacker, J. (2004), ‘Privatizing Risk without Privatizing the Welfare State: The Hidden Politics of Social Policy Retrenchment in the United States’, American Political Science Review, 98 (2), 243–60. Hacker, Jacob S., Paul Pierson and Kathleen Thelen (2015), ‘Drift and Conversion: Hidden Faces of Institutional Change’, in James Mahoney and Kathleen Thelen (eds), Advances in Comparative-Historical Analysis, New York: Cambridge University Press, 180–208. Hemerijck, Anton (2018), ‘Social Investment as a Policy Paradigm’, Journal of European Public Policy, 25 (6), 810–22. Human Resources Development Canada (1994), The History of Unemployment Insurance: 1940–1994, Ottawa: Human Resources Development Canada. Iversen, Torben and David Soskice (2015), ‘Democratic Limits to Redistribution: Inclusionary versus Exclusionary Coalitions in the Knowledge Economy’, World Politics, 67 (2), 185–225. Karch, Andrew (2007), Democratic Laboratories: Policy Diffusion among the American States, Ann Arbor: University of Michigan Press. Kleven, Henrik, Camille Landais and Jakob Egholt Sogaard (2018), ‘Children and Gender Inequality: Evidence from Denmark’, NBER Working Paper No. 24219. Lewis, Jane (1992), ‘Gender and the Development of Welfare Regimes’, Journal of European Social Policy, 2 (3), 159–73. Macdonald, David (2018), Child Care Deserts in Canada, Toronto: Canadian Centre for Policy Alternatives. Macdonald, David and Martha Friendly (2017), Time Out: Child Care Fees in Canada 2017, Ottawa: Canadian Centre for Policy Alternatives. McCain, Margaret and Fraser Mustard (1999), Reversing the Real Brain Drain, Toronto: Children’s Secretariat of Ontario. McKay, Lindsey, Sophie Mathieu and Andrea Doucet (2016), ‘Parental-Leave Rich and Parental-Leave Poor: Inequality in Canadian Labour Market Based Leave Policies’, Journal of Industrial Relations, 58 (4), 543–62. Michener, Jamila (2019) ‘Policy Feedback in a Racialized Polity’, Policy Studies Journal, 47 (2), 423–50. Milligan, Kevin (2016), ‘Finances of the Nation’, Canadian Tax Journal, 64 (3), 601–18. Monsebraaten, Laurie (2017), ‘Sale of Canadian Child-Care Chain to UK Corporation has Advocates Worried’, May 31, Toronto Star, accessed July 30, 2019 at www​.thestar​.com/​news/​gta/​2017/​05/​31/​ sale​-of​-canadian​-child​-care​-chain​-to​-uk​-corporation​-has​-advocates​-worried​.html Morgan, Kimberly (2005), ‘The “Production” of Child Care: How Labor Markets Shape Social Policy and Vice Versa’, Social Politics, 12 (2), 243–63. Morgan, Kimberly (2013), ‘Path Shifting of the Welfare State: Electoral Competition and the Expansion of Work-Family Policies in Western Europe’, World Politics, 65 (1), 73–115. Moyser, Melissa and Amanda Burlock (2018), Time Use: Total Work Burden, Unpaid Work, and Leisure. Women in Canada: A Gender-Based Statistical Report, Cat No 89-503-X, Ottawa: Statistics Canada. O’Connor, Julia S., Ann Shola Orloff and Sheila Shaver (1999), States, Markets, Families: Gender, Liberalism and Social Policy in Australia, Canada, Great Britain and the United States, New York: Cambridge University Press.

46  Handbook on gender, diversity and federalism Olivetti, Claudia and Barbara Petrongolo (2017), ‘The Economic Consequences of Family Policies: Lessons from a Century of Legislation in High-income Countries’, Journal of Economic Perspectives, 31 (1), 205–30. Organisation for Economic Cooperation and Development (OECD) Social Policy Division (2018), OECD Family Database. PF1.1, PF2.4, PF3.2, accessed July 30, 2019 at www​.oecd​.org/​els/​family/​ database​.htm Orloff, Ann Shola (1993), ‘Gender and the Social Rights of Citizenship: The Comparative Analysis of Gender Relations and Welfare States’, American Sociological Review, 58 (3), 303–28. Orloff, Ann Shola (2006), ‘From Maternalism to “Employment for All”: State Policies to Promote Women’s Employment across the Affluent Democracies’, in Jonah Levy (ed.), The State After Statism: New State Activities in the Era of Globalization and Liberalization, Cambridge, MA: Harvard University Press, 230–68. Parkin, Andrew (2015), International Report Card on Public Education: Key Facts on Canadian Achievement and Equity. Final Report, Toronto: Environics Institute. Pascal, Charles (2009), With Our Best Future in Mind: Implementing Early Learning in Ontario, Report to the Premier by the Special Advisor on Early Learning, Ontario: Government of Ontario. Patnaik, Ankita (2018), ‘Reserving Time for Daddy: The Consequences of Fathers’ Quotas’, Journal of Labor Economics, accessed July 30, 2019 at https://​doi​.org/​10​.1086/​703115 Prentice, Susan and Linda A. White (2018), ‘The Legacies of Childcare and Family Policies in Canada: Distributional Disadvantages’, Journal of International and Comparative Social Policy, 35 (1), 59–74. Québec Ministre du Travail – Emploi et Solidarité Sociale (2018), Québec Parental Insurance Plan, accessed July 30, 2019 at www​.rqap​.gouv​.qc​.ca/​en/​home Robson, Jennifer (2017), ‘Parental Benefits in Canada: Which Way Forward?’, IRRP Study, 63, 1–46. Sainsbury, Diane (ed.) (1999), Gender and Welfare State Regimes, Oxford: Oxford University Press. Shingler, Benjamin (2019), ‘CAQ Government Moves to Offer Pre-k Classes across Province’, CBC News, February 14, accessed July 30, 2019 at www​ .cbc​ .ca/​ news/​ canada/​ montreal/​ quebec​ -kindergarten​-four​-year​-olds​-1​.5019207 Smith, Miriam (2010), ‘Federalism and LGBT Rights in the US and Canada: A Comparative Policy Analysis’, in M. Haussman, M. Sawer and J. Vickers (eds), Federalism, Feminism, and Multilevel Governance, Vermont: Ashgate, 97–109. Streeck, Wolfgang and Kathleen Thelen (2005), ‘Introduction: Institutional Change in Advanced Political Economies’, in W. Streeck and K. Thelen (eds), Institutional Change in Advanced Political Economies, Oxford: Oxford University Press, 1–39. Tsebelis, George (1995), ‘Decision Making in Political Systems: Veto Players in Presidentialism, Parliamentarism, Multicameralism and Multipartyism’, British Journal of Political Science, 25 (3), 289–325. Tougas, Jocelyne (2002), ‘Reforming Quebec’s Early Childhood Care and Education: The First Five Years’, Working Paper, Toronto: Childcare Resource and Research Unit. Tuohy, Carolyn (2018), Remaking Policy: Scale, Pace, and Political Strategy in Health Care Reform, Toronto: University of Toronto Press. Vickers, Jill (2018), ‘“Gendering” Territorial Politics’, in Klaus Detterbeck and Eve Hepburn (eds), Handbook of Territorial Politics, Elgaronline, 74–88, accessed July 30, 2019 at www​.elgaronline​ .com/​view/​edcoll/​9781784718763/​9781784718763​.00011​.xml Waldfogel, Jane (1998), ‘Understanding the “Family Gap” in Pay for Women with Children’, Journal of Economic Perspectives, 12 (1), 137–56. Waldfogel, Jane (2010), Britain’s War on Poverty, New York: Russell Sage Foundation. Wallner, Jennifer (2014), Learning to School: Federalism and Public Schooling in Canada, Toronto: University of Toronto Press. Weingast, Barry (1995), ‘The Economic Role of Political Institutions: Market-Preserving Federalism and Economic Development’, Journal of Law, Economics, and Organization, 11 (1), 1–31. White, Linda A. (2012), ‘Must We All Be Paradigmatic? Social Investment Policies and Liberal Welfare States’, Canadian Journal of Political Science, 45 (3), 657–83.

Does federalism support policy innovation for children and families?  47 White, Linda A. (2014), ‘Understanding Canada’s Lack of Progress in Implementing the UN Convention on the Rights of the Child: The Intergovernmental Dynamics of Children’s Policy Making in Canada’, International Journal of Children’s Rights, 22 (1), 164–88. White, Linda A. (2017), Constructing Policy Change: Early Childhood Education and Care in Liberal Welfare States, Toronto: University of Toronto Press. White, Linda A. and Susan Prentice (2019), ‘The Politics of Social Investment in North America: Family Policies and Programs in Liberal Welfare States’, in J.L. Garritzmann, S. Häusermann and B. Palier (eds), The World Politics of Social Investment, Volume II: The Politics of Varying Social Investment Strategies, Oxford: Oxford University Press.

4. Federalism, gender equality and religious rights: Canada and Nigeria Peter (Jay) Smith

4.1 INTRODUCTION The twenty-first century has been marked by increasing violations and restrictions of human rights, particularly religious rights, in which women with increasing frequency have been the target of many governments, including democracies (Pew 2012; Human Rights Watch 2004).1 According to Lattimer (2010), ‘religious intolerance is the new racism’. The question this chapter addresses is the extent to which in an age of increasing religious intolerance and legal pluralism, federal systems of government provide advantages in protecting the human and religious rights of women, indeed of people generally. In the chapter, federalism is understood broadly as a complex approach in which multilevel institutions of governance share authority and influence with a variety of state and non-state actors (Sawer and Vickers 2010). The United Nations (UN) has been critical to the development of human rights beginning with the Universal Declaration of Human Rights (UDHR) in 1948. This was significant in the lives of women around the world, as Sawer and Vickers (2010, 13) maintain, ‘the UN and other multilateral organizations have provided an institutional home for feminist officials and gender experts, who have helped generate norms widely disseminated by women’s international networks’. In a world in which the human and religious rights of women are being violated, do federal systems whose human rights norms have been shaped by multilevel institutions of governance provide advantages in protecting these rights? If so, at what level does this occur: the central or the regional and why? Or does the fragmentation of authority manifested through legal pluralism hinder such protections rather than serve them? This is relevant because in recent years there have been flash points in relations in federal states between advocates of religious rights and freedoms and those pursuing gender equality. The chapter explores two examples of regional governments: northern Nigeria and Quebec, each of which displays a distinctive and contradictory approach. In Nigeria, following the introduction of a new constitution in 1999 that marked the transition to democracy, the northern predominantly Islamic state of Zamfara, then other northern states in 2000 began extending Shari’a law to penal codes in what has been depicted as the de facto creation of asymmetrical federalism. These actions of regional governments violated constitutional provisions that assigned authority over criminal law to the central government, and limited the scope of the Shari’a Court of Appeal to personal status issues, for example private or family law including notably marriage, divorce and inheritance (Bolaji 2010; 2013; Suberu 2015).2 With the extension (and criminalization) of Shari’a law came other laws and restrictions primarily associated with gender including, but not limited to, requirements for wearing the hijab, enforcement of which varied depending on the particular state (Nasir 2007).3 According to Bolaji, the overall result was that ‘Muslim women and the poor appear to be the targets of the Shari’ah implementers’ (2013, 105). Moreover, the religious rights of 48

Federalism, gender equality and religious rights  49 non-Muslims were also restricted, for example, non-Muslim children in public schools often were required to conform to Islamic dress codes, including wearing the hijab (Bolaji 2013). For 30 years, French-Canadians in Quebec have been consumed by anxiety about the increasing immigration of Muslims that many see as a threat to their identity. Public debate has often been heated and proposals have been made to address the issue. In October 2017 the Quebec government passed Bill 62, the Quebec Liberal government’s so-called ‘religious neutrality’ legislation with provisions that target Muslim women wearing the niqab or burka that covers the face (except for the eyes) as well as the body.4 Since very few Muslim women in Quebec wear either, the legislation’s relationship to anxiety about French-Canadians’ identity is clear. The dominant discourse in Quebec and Nigeria’s non-Muslim states has been that Muslim women are oppressed by Shari’a law and Muslim practices. This is a contentious proposition. The concern of this chapter is the question of the violation of women’s human and religious rights, and how it intersects with the legal pluralism central to federal systems. The chapter is organized as follows. First, the importance of comparing these two systems is discussed. Second, the influence of international human rights norms on these federations and their implementation is considered for each and the concept of legal pluralism is discussed. Third, the relationship between religion and modernity, which differs in each country, but is critical to understanding the debate over gender and questions of religious rights and freedoms, is discussed. In the fourth section, the relationship between federalism, the implementation of Shari’a law in northern Nigeria and its contested effects is examined within the context of international human rights norms and legal pluralism. The fifth section discusses Quebec’s Quiet Revolution and how the discourse of modernity helped shape public opinion on the passage of Bill 62. The conclusion posits that the legal pluralism that characterizes federal states may put the religious and gender rights of minorities at risk.

4.2

IN COMPARISON

Ideally, in comparing any two systems, they should be alike as possible; but as Gray notes, ‘all currently existing federal systems differ in major ways: institutionally, economically, politically and in terms of political cultures’ (2010, 20). This is true of Nigeria and Canada. For example, Nigeria has a presidential system of government while Canada has a parliamentary system. Yet both historically have been concerned with questions of how to accommodate ethnic diversity, religion and secularism, albeit in different ways. They are similar in other ways; for instance, both are characterized by legal pluralism which Quane (2013, 676) defines as the ‘co-existence de jure or de facto of different normative legal orders within the same geographical and temporal space’. So citizens of federations are governed by laws enacted by both the central and regional governments. Canada recognizes English common law, French civil law and, increasingly, Indigenous law; while Nigeria recognizes customary law based on Indigenous norms and practices, Islamic law and English common law and statutory law. Legal pluralism stems from the very nature of federal systems in which central and regional governments share legislative powers. This results in potential differences between the laws of the central and regional governments and often also differences among the laws of regional governments (Oba 2011, 883).

50  Handbook on gender, diversity and federalism International law and UN treaties add another dimension to the issues raised by legal pluralism. Both Canada and Nigeria are legally dualist; that is, international treaties must be incorporated into their domestic law by passing empowering legislation to establish legal effect. Which level(s) of government must approve treaties or conventions is significant regarding the implementation of international human rights norms including those affecting women’s rights.

4.3

THE HUMAN RIGHTS REGIMES OF CANADA AND NIGERIA

Human rights norms as articulated by the UN are defined as universal and global, deemed to apply to all countries without exception. But reality is often very different with significant gaps between aspiration and actuality. The fact that these statements of norms exist present an opportunity for those marginalized to name, frame and shame violators of their human rights. Both Canada and Nigeria have been influenced by international human rights norms, especially the UDHR. The UDHR is not legally binding on countries, but it sets standards and values that influence other UN and international human rights instruments and the human rights standards of many countries (Dada 2012). One example is the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW) which the UN adopted in 1979 and which came into effect in 1981 once ratified by the required minimum of 20 countries.5 CEDAW provides an important platform on which the performances of countries regarding human rights that specifically affect women can be reviewed and civil society organizations can submit complaints about alleged violations. Both Canada and Nigeria have ratified most if not all key UN human rights treaties including CEDAW;6 however, it is important to distinguish ratification from implementation. As noted, in both Canada and Nigeria there is a gap between ratification and implementation through the domestication of such treaties by the central and regional governments passing empowering legislation if the matters involved are not solely with the constitutional competence of the central government. The Nigerian central government’s efforts to domesticate CEDAW has been blocked for decades because legal pluralism requires that at least 23 Houses of Assembly of regional governments approve and implement it. As in the United States, the central senate also has declined to pass it. In Canada, many of the human rights norms in UN treaties are now embodied in the Charter of Rights and Freedoms (1982) which is the supreme law of the land. However, the Charter only applies to the actions of governments, not of private actors, as is the case in the Swiss federation. Moreover, the Charter’s provisions are subject to section 33 – the ‘notwithstanding clause’ – that lets parliament, or a provincial legislature, enact legislation that can override specific provisions of the Charter. Human rights legislation exists in all provinces and territories to protect people from discrimination in provincial and territorial jurisdictions, including workplaces, schools, housing, restaurants, stores and other areas of private-sector relations. But any and all can be overridden. Like Canada, Nigeria has given attention to the formal recognition of human rights (Dada 2012). Its 1999 constitution has 26 sections devoted to human rights including religious rights. There are important exceptions in the areas of lesbian, gay and transgendered rights (Campbell and Page 2018) and women’s rights that will be hard to overcome because of legal pluralism and Nigeria’s strongly patriarchal culture.

Federalism, gender equality and religious rights  51

4.4

THE HISTORICAL LEGACY OF MODERNITY AND RELIGION

The struggle over women’s human and religious rights needs to be understood within the context of debates over the role of modernity and religion. Modernity is associated with western epistemological hierarchical dualisms, masculine and feminine, public and private, secular and religious (Lander 2002, 245). Europe produced a view of the secular such that ‘to be secular means to be modern, and therefore, by implication, to be religious means to be somehow not fully modern’ (Casanova 2009, 1059). This western, monistic view of modernity with its division into public and private spheres and relegation of religion to the latter has never been empirically accurate. The assumption of a singular modernity has given way increasingly to the idea of multiple modernities (Ooommen 1999) in which state-religion-society relations can take multiple forms. In countries with large Muslim populations and viable democracies such as India, there is what Stepan (2010, 2) describes as ‘the respect all, positive cooperation, principled distance model’ in which instead of strict ‘separatist patterns’ of religion and state, the central state has ‘embraced positive accommodation of religion[s]’ (2010, 26). Nigeria, with its religious divisions between Christians and Muslims, as well as Yoruba traditional religious beliefs, is closest to the Indian model. Moreover, within each general faith, there are denominations and conflicts among them.

4.5

NIGERIA: SOCIETY, FEDERALISM, GENDER AND THE IMPLEMENTATION OF SHARI’A LAW

4.5.1 Background Nigeria is the most densely populated country in Africa and the most complex in ethnic, linguistic and religious terms with almost 400 ethnic groups and over 500 languages (Kangiwa 2015). The three largest ethnic groups are the Hausa/Fulani in the Muslim north, and the Yoruba and Igbo in the south. Religion is a prominent organizer of communities. According to a 2012 Pew study the country is divided almost equally between Christians and Muslims with a smattering of smaller religions including traditional religion and Jehovah’s Witnesses. But as Oba notes, religion should not be conflated with ethnicity or regionalism. In the north Muslims dominate but there are pockets of non-Muslims, including a large Christian minority. In the south, Christians dominate, but Islam is a large minority among the Yoruba in the southwest with some adherents in the southeast (Oba 2011). Both ethnic and religious cleavages have been a source of political disagreement and violence since the colonial era with religious cleavages between Christians and Muslims predominating. According to Sodiq (2009) both are fiercely missionary and competitive, each believing it is superior to the other. Today, Christians fear that Muslim-majority regional governments will attempt to impose Shari’a law on non-Muslims, as has happened since democratization. Muslims fear missionary Christian attempts to impose westernization (Ochonu 2014). In an effort to contain these societal divisions, the 1999 constitution institutionalized the 36 states created mainly by pre-democracy military governments. Therefore, Nigerian federalism has been an exercise in conflict management, a common phenomenon in the former colonial states of Africa (Anyebe 2015). This left gender on the sidelines, virtually invisible

52  Handbook on gender, diversity and federalism politically. Nigerian women have been marginalized by patriarchal values which have long existed in the areas that make up today’s Nigeria. Post-colonial Nigeria with its long periods of military rule intensified male dominance and centralized political power. As Para-Mallam (2017, 16) notes, ‘experiments with western style democracy have primarily and ostensibly been government of men, by men, for men’. This is evident in the June 2018 data compiled by the Inter-Parliamentary Union in which Nigeria ranks 181st out of 188 countries in women’s participation in the central government. In the 2015 Nigerian federal election, in the House of Representatives 20 out of the 360 seats or 5.6 per cent were held by women as were 7 or 6.5 per cent of the Senate’s 108 seats. 4.5.2

Nigeria’s 1999 Democratizing Constitution, Federalism and Controversy over the Implementation of Shari’a Law

The 1999 constitution restored a federal state focused on constraining and managing ethnic and religious conflict, paving the way for a gradual return to democratic governance. The devolution of powers and legal pluralism led some northern Muslim-majority states to interpret their democratic authority as including the right to implement Shari’a law fully by adding it to the criminal law which Muslim leaders had long demanded.7 Many legal experts consider this against the provisions of the 1999 constitution. Ogbu (2014, 20) argues that while the constitution has no explicit provision stating that Nigeria is a secular state, when all provisions are taken in context ‘the conclusion that Nigeria is a secular state is compelling’. Ogbu admits that interpretations of the constitution are contentious. Muslims cite provisions of the constitution that seem to support the argument that Nigeria is not a secular state. For example, there are provisions requiring regional states to promote facilities for religious life, including education. Therefore, Muslims argued that ‘Nigeria is not a secular state, but a republic’ (Sodiq 2009, 662) and that the majority of a state’s citizens should be free to choose the legal code under which they will be governed.8 This is what occurred: acting on this belief and pointing to the legal pluralism embedded in the 1999 constitution, from 2000 to 2001, some northern Nigerian states began implementing full Shari’a law including giving Shari’a courts jurisdiction over criminal law. This despite the fact that jurisdiction over criminal law is under the constitutional authority of the central government. This territorialized and pluralized Shari’a law on a state-by-state basis, whereas criminal law previously was constitutionally a matter for the central government and the same across the federation. In effect, this implementation of Shari’a law created a de facto asymmetrical federal system in Nigeria (Bolaji 2010, 115). That is, a form of ‘political asymmetry’ was established by the unilateral actions of northern states with no constitutional grounding (Bolaji 2010). This exposes the weakness of Nigeria’s democratic central government which lacks the capacity and political will to intervene even though ‘the adoption of Islamic law in the twelve Northern states has caused an uproar and generated some intense criticism in Nigeria and abroad’ (Sodiq 2009, 664). A Human Rights Watch report (2004) pointed to numerous human rights abuses and expressed concern ‘at provisions within Shari’a that discriminate against women, both in law and in practice, and other patterns of human rights violations against women in this context’. Not all Nigerian women share this view. Muslim feminists in northern states (who reject the belief of western feminists and non-Muslim feminists that to be feminist you must be secular) favor the full implementation of Shari’a law and have worked in support of it. In 1999 there

Federalism, gender equality and religious rights  53 were reports of women protesting the delay in the implementation of Shari’a law in Zamfara State (Nasir 2007). This should not be too surprising since 70 per cent of Nigerian Muslims favor the implementation of Shari’a law (Pew 2012). For many Muslim scholars and feminist activists, the problems lie not with Islam or Shari’a law but with patriarchy and male-dominant interpretations of it. They think Islamic religion was ‘manipulated by patriarchy to perpetuate male dominance in private and public affairs’ (Para-Mallam 2017, 27) which ‘creat[ed] a patriarchal vision of Islam but such is not the authentic Islam’ (Olarinmoye 2013, 63). Bawa (2017, 150) maintains that Islam ‘has a comprehensive package of rights for women’ but that to be effective, Muslim women must take a reformist stance while proclaiming their attachment to Islam. In northern Nigeria, feminist Muslim movements and organizations are challenging patriarchy within Islam. These efforts are led by the Federation of Muslim Women Association of Nigeria (FOMWAN), one of the largest Muslim organizations in Africa with members in all 36 states (2018). Created in 1985, it is a federation with over 500 affiliates across Nigeria and works within Islam, regarding Shari’a law to create a space for women with societal legitimacy. It advocates for the education of girls with the hope that this will help eradicate their poverty (Olarinmoye 2013). In this regard there has been some success (Bawa 2017; Nasir 2007). Their reformist position is strategic: ‘FOMWAN support for Sharia implementation was because it gives reason for manoeuvre for women’ (Bawa 2017, 63). FOMWAN has supported implementation of Shari’a from the beginning urging those who were so upset by its implementation to calm down and learn about ‘Shari’a rather than hold onto age-old misconceptions and misinformation’ (FOMWAN 2018; Nasir 2007, 94). Nonetheless, FOMWAN ‘subscribes to the diametrical opposition and incompatibility between secularism and Islam defined as Westernization and Islam’ (Olarinmoye 2013, 63). It firmly supports the wearing of the hijab stating on its website that the ‘Wearing of [the] hijab is an injunction of Allah, aimed at protecting the vulnerability of Women in the society’ (FOMWAN 2014). It objected strongly to a 2014 ruling by a southern Lagos state court that banned the hijab in public schools. Critics note that FOMWAN has downplayed negative practices in the implementation of Shari’a law and its effects on women and the poor. Bolaji (2010; 2013) asserts that internal restrictions have been primarily based on gender; for example, the requirement that women see only female doctors means that with few female doctors, women and girls receive much inferior medical treatment. Moreover, Shari’a penal law can be strongly imposed on the poor with corrupt politicians let off lightly (Bolaji 2013). Contrary to the claims that non-Muslims would not be affected by the implementation of Shari’a law, Bolaji (2013, 108) maintains that they ‘have suffered a reduction in the enjoyment of their fundamental human rights and their collective identity’ as they become second-class citizens in Muslim-majority states. In particular, Shari’a law has intensified ‘religiously based discrimination against non-Muslim groups, particularly the Christian group’ with some Muslim hospitals firing nurses for not following the prescribed dress code (Bolaji 2013, 108–9). The central government is aware that its treatment of women is under scrutiny by the international community. In its 2017 appearance before the CEDAW committee reviewing the seventh and eighth reports of the Nigerian government, one expert member of the committee asked the Nigerian delegation if the Nigerian government was ‘willing to propose that all issues relating to human rights, including children and women’s rights, and issues of gender-based violence, belong to the Executive Legislative List to ensure a uniform framework of protection across the country?” (United Nations 2017). This is a critical question that assumes the

54  Handbook on gender, diversity and federalism importance of uniformity and repudiates legal pluralism in relation to human rights. While the Nigerian constitution formally provides for extensive human rights, the rights of women and children are not mentioned. The Nigerian central government has the sole authority to domesticate an international treaty under section 12 of the constitution if it is included in the exclusive legislative list of the constitution. The rights of women and children are not on the exclusive list meaning that to domesticate the CEDAW treaty, the National Assembly and the Senate plus at least 23 out of 36 state Houses of Assembly must approve it. Hence CEDAW’s request for a constitutional review (turned down by the Nigerian delegation) that would place the rights of women and children on the central government’s exclusive list and so make it constitutionally possible for the central government to act on its own – if it had the will, which it does not appear to have. But in 2016 the Nigeria senate killed the bill that would have been the first step in domesticating the CEDAW treaty (Payton 2016). Therefore, while to date federalism in Nigeria has permitted ethnic and cultural groups to express their collective cultures and identities on a regional basis, regional governments have used the institutions of democracy and legal pluralism in ways that may jeopardize the human rights of women and minorities. In doing so northern leaders, many of whom are also religious leaders, reject what their predecessors once agreed to, a privatized role for Shari’a law, which the British insisted on as a condition for an independent Nigeria, which was intended to be modern and secular.

4.6

QUEBEC: SOCIETY, FEDERALISM AND THE BATTLE AGAINST THE NIQAB

4.6.1 Background The targeting of minority Muslim women in Quebec must be understood within the context of the Quiet Revolution of the 1960s, which involved the rejection of the grip the Catholic Church had on Quebec society for nearly 200 years. Quebec was a society dominated by patriarchy, women’s subjugation and economic domination by English Canadians. According to Vickers (2010, 413), the Quiet Revolution: ‘[m]odernized Quebec society, by creating new secular institutions, including unions and parties… [and] a more women-friendly, modern nationalism based on territory and language’. Moreover, ‘these changes opened Quebec society to women’s participation, creating opportunities francophone feminists embraced’. They benefitted from this new relationship with the Quebec state successfully promoting progressive social policies and services. It is this strong identification with a modern, secular state that makes most francophone feminists determined to exclude religion and religious symbols from the public sphere. They reject English Canada’s commitment to liberal multiculturalism with its individualistic assumptions that are seen as threatening to the Québécois community (Burchardt 2016, 25). Instead of multiculturalism, Quebec has wavered between a republican model of belonging and citizenship which rejects cultural pluralism (Juteau 2002) and an intercultural model which tries to strike a balance between multicultural and republican models. Interculturalism recognizes francophone, Québécois culture as the majority culture which involves ‘a reciprocal engagement between the Quebecois majority and cultural communities [qua communities]’ (Chiasson 2012, 2). The host society assists immigrants to integrate into Quebec’s social and economic fabric linked by the French language and a secular French culture. However, the

Federalism, gender equality and religious rights  55 latter is a sticking point. Gérard Bouchard (2015, 131–3) calls for an ‘inclusive secularism’ which bans religious symbols in the public sphere and supports a charter of secularism. Concern over secularism as a defining characteristic of francophone culture poses the problem of how the Quebec state accommodates diversity, in particular, religious diversity which is viewed as a threat to Québécois women’s hard-fought struggle for liberation. However, religious diversity is a characteristic of today’s world with massive transnational migration changing many nations’ demographic make-up. This has produced a general condition of uncertainty and anxiety in these nations, Quebec included, reinforced by the general moral panic arising from the 9/11 terrorist attack on the United States. Sharify-Funk (2011) thinks this anxiety was evident in Quebec from the 1990s when several girls were expelled from school for wearing headscarves following a pattern that occurred in France earlier. Regarding the veil, Quebec has been heavily influenced by France and its republican approach to questions of secularity and religion, especially regarding Islam and Muslims. Sharify-Funk (2011, 140) argues that two factors in the French experience have shaped francophone feminism in Quebec: laïcité, the French conception of a strongly secular state and public culture; and the French colonial presence in Muslim North Africa, with the subsequent post-colonial experience of economically driven North African migration to France. In this French influence, there is a lingering presence of la mission civilsatrice. By making women remove their veils, the French colonial administrators in Algeria believed they could make them submit to western dominance, a view that has resurfaced in Quebec. Fanon disagreed, viewing the ‘veil as a flexible, transient, symbol rather than a static “fact” of Arab identity’, a possible means of resistance to domination and not necessarily a symbol of oppression (Gauch 2002, 121). That Muslim women may have their own independent voices about wearing the niqab or hijab is seldom entertained by western feminists although post-colonial feminists give it credence. The controversy over the veil was reflected in the mass media and Liberal premier, Jean Charest’s decision to strike the Bouchard-Taylor Commission in 2007. Bouchard and Taylor concluded that there was not an actual crisis, but a crisis of perception centered around the Quebec government’s management of religious diversity. The report stated that ‘respect for [religious] diversity was made subordinate to the need to perpetuate the French-language culture’ (2008, 117) in which a secular society was seen as central. In the years since the Quebec government has proposed various legislative solutions including those which restricted the wearing of minority communities’ religious symbols, particularly the veil, when dispensing or receiving public services. Unlike northern Nigerian regional governments which acted under their declared de facto asymmetrical authority, Quebec was acting legislatively like any other Canadian province and not under its asymmetrical authority under the Canadian constitution. The proposed solutions were based on the assumption that the Canadian federation’s system of legal pluralism gave the province the authority to enact any relevant legislation – a contentious perspective. Each time, political circumstances intervened to prevent the legal enactment and full implementation of these measures. The niqab was depicted in Quebec as a symbol of the patriarchal oppression from which Muslim women must be freed. In their feminist post-colonial analysis of unilateral actions, Golnaraghi and Mills (2012) discuss the ill-fated Bill 94 introduced by a Liberal government in 2010 which, if passed, would have required the face to be visible during interactions between government employees and those seeking public services. This, they argued, was a reflection of ‘fundamental angst deeply rooted in neo-colonial discourses’ (2012, 158) and grounded in a hierarchy of binaries traditionally found in modernist thinking such as ‘modern/traditional,

56  Handbook on gender, diversity and federalism Quebecer/Muslim, secular/religious’ (Golnaraghi and Mills 2012, 164). Ignored were some Muslim women’s claims that wearing the veil was a matter of freedom of choice and religion. The proposed Bill 94 was narrower in scope than the Charter of Values introduced by the newly elected Parti Québécois (PQ) government in 2013 in attempting to address the issue of reasonable accommodation. Had this Charter been passed, it would have banned public servants from wearing any visible symbol of a religious affiliation, including a turban, hijab or kippah, when providing services to the public or by anyone receiving public services, thereby affecting more minorities. But the PQ government was defeated by the Liberals in the 2014 provincial election. 4.6.2

Bill 62

The latest, but probably not the last, of these measures is Bill 62 passed in 2017. The Liberal Party of Quebec introduced Bill 62 in 2016 describing it as a sensible, tolerant way to enforce state neutrality. The bill’s title indicates its intent: An Act to foster adherence to state religious neutrality and, to provide a framework for religious accommodation requests in certain bodies. The bill requires those working for the Quebec state and providing services including public transportation and day care to wear no facial covering. Nor can anyone receiving such services have their face covered. These public services include education, day care, health care, public transportation – even borrowing a book from a local library. Moreover, the bill targeted especially Muslim women wearing the veil. It met with overwhelming public favor. According to one poll, 87 per cent of Quebec citizens supported the legislation. Among francophone Quebeckers, support rose to 92 per cent (Angus Reid Institute 2017). Perhaps surprisingly, a majority of Canadians outside Quebec who were surveyed said they also would support similar legislation; with 73 per cent of men and 64 per cent of women in favor (IPSOS 2017). The common concern expressed in legislative testimony was that Bill 62 did not go far enough or that the legislation was too timid. A much expressed belief was that Muslim women who wear the veil are forced to do so and must be freed from patriarchal tradition and encouraged to join Quebec’s modern, secular society. One common criticism was that the concept of religious neutrality was counterproductive because ‘the State cannot be neutral in the face of certain religious practices that discriminate against women and others’ (Pour les droits des femmes du Quebec submission to the Quebec Assembly 2016, author’s translation). Rather, what this and other organizations including the secular Association des Musulmans et des Arabes pour la Laïcité au Quebec wanted in the bill was an explicit reference to laïcité.9 In sum, Quebec’s secular values were to prevail in the legislation. Organizations and individuals expressed the opinion that religious accommodations should not be made for the veil (AMAL 2016). The submission of the report claimed that demands for religious accommodation supported Islamic fundamentalism. It quoted a noted Quebec humorist’s quip that ‘Accommodating an Islamist fundamentalist is like feeding a crocodile with a lettuce leaf hoping he will become a vegetarian’ (AMAL 2016, 4). The veil was seen as a symbol of oppression and of Islamist fundamentalism, therefore to be banned in public. Appearing before the committee considering the legislation, activist journalist, Djemila Benhabib claimed that Quebec was forgetting its collective history and struggle for women’s rights and secularism. According to the submission of Benhabib, ‘it’s as if we have not deconfessionalised our schools; [and] fought to… remove women from the authority of the Church and her husband’ (2016, author’s translation).

Federalism, gender equality and religious rights  57 Critics in favor of a strong bill wanted a clearly articulated republican view of secularism. Others argued that the bill went too far, violating women’s religious rights, was punitive in its treatment of veiled women, was Islamophobic and too closely linked to the legacy of French colonialism in which Muslim women’s bodies were perceived as a civilizational threat. On this Gallo (2017) argued that: ‘Quebec has inherited this colonial discourse that links the veil to the level of a civilization’s worth. While Quebec has tried to justify this discriminatory bill in the name of “religious neutrality”, this is not the first-time secularism has been used as a means for prejudiced ends.’ Most opponents argued that the bill exceeded the limits imposed on legal pluralism in Canada, was clearly discriminatory and by violating the rights of Muslim women violated the Charter of Rights and Freedoms section 2(a) freedom of conscience and religion (Canadian Muslim Lawyers Association 2018; Canadian Civil Liberties Association 2016). The legislation also appeared to violate the Quebec Charter of Rights. With just between 50 and 100 Muslim veiled women in Quebec (Peritz 2017), finding women wearing the niqab willing to speak publicly was not easy. Those who did belied the image of them in the media and by francophone feminists before the Quebec Assembly. In her interviews of three veiled women, Peritz (2017) observed: ‘All insist that they are not victims, not submissive and not the instruments of their husband’s will.’ Asma Ahmad stated that ‘people are trying to liberate us, but they’re doing the opposite when they’re telling us what to do. Nobody is forcing us to cover ourselves, but this law is forcing us to uncover ourselves.’ Their rights were not supported by francophone feminists. Interviewee Saima Sajid stated that ‘feminists should support women and the choices they make… I was raised to believe that as a confident individual I can make my own choices no less than a man.’ Bill 62 is fated to fail for two reasons. First, in June 2018 the Canadian Civil Liberties Association and the National Council of Canadian Muslims successfully obtained a stay of section 10 of the Bill as it appeared to be a ‘violation’ of the Canadian and Quebec Charters, both of which according to Quebec Superior Court Justice Marc-André Blanchard ‘provide for freedom of conscience and religion’ (Canadian Civil Liberties Association 2018). Second, with the electoral defeat of the provincial Liberal Party in October 2018 the leader of the newly elected Coalition Avenir Quebec government, François Legault, quickly advanced his own proposals on religious neutrality, supporting a ban on state employees – including teachers, police officers and judges – wearing religious symbols in the workplace. Such a ban would include not only the veil but other religious symbols such as the turban and the kippa – yet not the crucifix hanging in the Quebec national assembly deemed to be part of Québécois francophone history leading to charges of a double standard.10 The proposed ban is similar to the PQ’s ill-fated Charter of Values which would have banned religious garb for all public employees but is different in that the ban does apply to those receiving public services. Legislation establishing this ban likely would be struck down by Canada’s Supreme Court as a violation of the Charter of Rights and Freedoms resulting in a possible constitutional crisis. Legault stated his government would exercise the notwithstanding clause and override the Charter. ‘This clause,’ he said, ‘is to make sure we protect our collective rights’ (in Laframboise 2018). In effect, Legault is arguing that there is no limit to Quebec’s right to legal pluralism when it comes to the majority discriminating against the human and religious rights of minorities.11 The parallel with Nigeria is apt in the sense that while federalism permits ethnic and cultural groups to express their collective cultures and identities on a regional basis, the institutions

58  Handbook on gender, diversity and federalism of democracy and legal pluralism can be employed to put the human and religious rights of women and other minorities in jeopardy.

4.7 CONCLUSION This chapter reveals that rather than offer protections to the human and religious rights of women, the legal pluralism in federal states may put them at risk. Much depends on the constitutional authority, capacity and political will of central governments to defend these rights. According to Quane (2013), central governments cannot evade their responsibilities under international treaties to ensure that human rights (including women’s rights) are upheld throughout the territory they govern. She maintains that once a state ratifies a treaty it is legally bound under international law to ensure it is implemented at every level. Yet this is not common in federations: while former United States President Carter signed CEDAW, the senate has persistently refused to ratify it. The central government may lack the constitutional authority to enforce an international human rights treaty. The Canadian constitution permits the Charter of Rights and Freedoms to be overridden (subject to renewal every five years) by the central or any regional legislature. In Nigeria, the human rights of women do not appear in the constitution’s exclusive list, leaving the central government without the legal capacity needed to implement CEDAW even if the senate could be persuaded to ‘domesticate it’. Moreover, its ability to change the constitution is limited as 23 of the 36 states must approve any change. In such cases, central governments’ capacity to implement rights instruments and prevent discrimination is difficult given that their federal arrangements include strong legal pluralism. According to Campbell and Page (2018, 153), in Nigeria, ‘weak state capacity, official corruption, poverty and religious divisions severely limit the free exercise of many fundamental human rights’. The Canadian central government has more capacity but not always the political will to ‘interfere’ in Quebec. What could a Canadian government do, dependent as it often is on Quebec electoral support, if the Quebec legislature, supported overwhelmingly by the population, overrode any Supreme Court ruling against discrimination affecting religious minorities? This is clouded by the fact that in both Canada and Nigeria the idea that women are oppressed is contested: who gets to say that women’s human and religious rights are being violated? In northern Nigeria many Muslim women support the implementation of Shari’a law for their community, as strongly as the majority of the population elsewhere oppose it. Quebec feminists claim veiled women are oppressed which many Muslim women deny, and post-colonial feminists see the claim as another manifestation of colonialism. Rottmann and Ferree (in O’Neill et al. 2015, 1887) consider this ‘difficult theoretical terrain for all feminists’. The effects of legal pluralism in federations are not strictly internal domestic matters as international human rights norms also are relevant. In Nigeria where Shari’a law was applied harshly against women by some Muslim states, it took the intervention of international human rights organizations and activists along with rulings of the Shari’a court of appeal to set the women free (Bolaji 2010). Nigeria’s human rights record has been criticized at the UN, in 2016 international pressure forced the central government to introduce ‘A Bill for an Act to Incorporate and Enforce Certain Provisions of the United Nations Convention on the Elimination of All Forms of Discrimination Against Women… and Other Matters Connected

Federalism, gender equality and religious rights  59 Therewith’ (Daily Trust 2017). Ultimately the central legislature rejected it. Pressure on Canada’s central government at the UN to conform to international human rights law likely would be considerable, but given Canada’s inconsistent record at the UN when it comes to human rights, in particular Indigenous rights, there is no certainty on how the Canadian central government would react. In the end legal pluralism in Canada and Nigeria provides a barrier to the full realization of the human and religious rights of women, but it isn’t insurmountable.

NOTES 1. The author would like to thank Aisha Balarabe Bawa, Lecturer and Researcher, Department of History, Usmanu Danfodiyo University, Nigeria; Dr Eyene Okpanachi, Banting Postdoctoral Fellow, Political Science, University of Victoria, British Columbia for their comments on an earlier version of this chapter and Jill Vickers for her careful and helpful editing of the chapter. 2. Shari’a law is religious law integral to the Islamic tradition. In Nigeria the British colonial administration restricted Shari’a to personal and civic laws e.g. marriage, divorce and inheritance. This continued after independence under military rule. Penal codes refer to criminal laws, for example, theft, adultery and murder. There are several different interpretive traditions of Shari’a, some more positive for women. 3. The wearing of the hijab was required by law in Yobe State but even where it is not imposed by law, it is being imposed by state institutions by regulation. 4. What is being discussed is also referred to as the ‘discourse of the veil’. According to Golnaragh and Dye the veil can take on a number of forms and is known variously as the burka, the chador, the niqab, the yashmak and the hijab (2016). 5. Once ratified states are legally bound to put its provisions into practice and submit national reports on their compliance at least once every four years. 6. For a list of treaties that each country has ratified see the Office of the High Commissioner for Human Rights at https://​tbinternet​.ohchr​.org/​_layouts/​TreatyBodyExternal/​Treaty​.aspx 7. It should come as no surprise that political leaders can be religious leaders in Nigeria. In particular Islam asserts that religion is a way of life not to be distinguished from other spheres. 8. The relationship between legal pluralism in Nigeria and the domestification of CEDAW shall be discussed later in this section. 9. For a longer discussion of this matter see the submission of ‘Lawyers for Laïcité and Religious Neutrality of the State’, November 2, 2016. 10. The crucifix was taken down earlier in July. See https://​montrealgazette​.com/​news/​quebec/​crucifix​ -removed​-from​-salon​-bleu​-of​-national​-assembly​-after​-over​-80​-years 11. As this Handbook was in its concluding stages the Legault government passed Bill 21 along the lines discussed above. Specifically, the bill prohibits persons in authority such as public servants including elementary and high school teachers, principals, vice-principals, judges, government lawyers and police officers from wearing religious symbols such as the hijab, crucifix, turban or kippah while at work. The bill provides a grandfather clause for existing employees wearing symbols. They can be worn as long as the employee does not change schools or take a promotion (Authier, June 17, 2019).

REFERENCES Angus Reid Institute (2017), ‘Politics: Major Support for Bill 62, Far Less Approval for Government’s Handling of Border Issues’, accessed July 15, 2018 at http://​angusreid​.org/​quebec​-provincial​-issues​ -sept/​ Anyebe, A. (2015), ‘Federalism as a Panacea for Cultural Diversity in Nigeria’, Global Journal of Human-Social Science: Sociology and Culture, 15 (3), 5–24.

60  Handbook on gender, diversity and federalism Association des musulmans et des arabes pour la laïcité au Quebec (AMAL) (2016), Presentation to the Quebec National Assembly Parliamentary Committee on Special Consultations and Public Hearings on Bill 62, an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies, November 8, accessed July 10, 2018 at www​.assnat​.qc​.ca/​en/​travaux​-parlementaires/​commissions/​ci/​mandats/​Mandat​-36307/​index​.html Bawa, Aisha Balarbe (2017), ‘Muslim Women and Sharia Implementation in Northern Nigeria: An Overview of Fomwan’, Unizik Journal of Arts and Humanities, 18 (1), 149–67. Benhabib, Djemila (2016), Presentation to the Quebec National Assembly, Parliamentary Committee on Special Consultations and Public Hearings on Bill 62, an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies. November 8, accessed July 10, 2018 at www​.assnat​.qc​.ca/​en/​travaux​-parlementaires/​ commissions/​ci/​mandats/​Mandat​-36307/​index​.html Bolaji, M. (2010), ‘Shari’ah in Northern Nigeria in the Light of Asymmetrical Federalism’, Publius, 40 (1), 114–35. Bolaji, M. (2013), ‘Between Democracy and Federalism: Shari’ah in Northern Nigeria and the Paradox of Institutional Impetuses’, Africa Today, 59 (4), 93–117. Bouchard, Gérard (2015), Interculturalism: A View from Quebec, Toronto: University of Toronto Press. Bouchard, Gérard and Charles Taylor (2008), Building the Future: A Time for Reconciliation, abridged report, Government of Quebec. Burchardt, M. (2016), ‘Recalling Modernity: How Nationalist Memories Shape Religious Diversity in Quebec and Catalonia’, MMG Working Paper 16-02, 1–28. Campbell, John and Matthew T. Page (2018), Nigeria: What Everyone Needs to Know, Oxford: Oxford University Press. Canadian Civil Liberties Association (2016), Presentation to the Quebec National Assembly, accessed July 15, 2018 at https://​ccla​.org/​cclanewsite/​wp​-content/​uploads/​2016/​11/​2016​-11​-08​-Bill​-62​ -Submissions​-to​-NA​-Committee​-on​-Institutions​-Final​.pd Canadian Civil Liberties Association (2018), ‘CCLA and NCCM Successfully Obtain Renewed Stay against Quebec’s Bill 62’, accessed October 11, 2018 at https://​ ccla​ .org/​ ccla​ -nccm​ -successfully​ -obtain​-renewed​-stay​-quebecs​-bill​-62/​ Canadian Muslim Lawyers Association (2018), ‘Backgrounder: Bill 62’, accessed October 11, 2018 at www​.cmla​-acam​.ca/​post/​bill​-62 Casanova, J. (2009), ‘The Secular and Secularisms’, Social Research, 76 (4), 1049–66. Chiasson, M. (2012), ‘A Clarification of Terms: Canadian Multiculturalism and Quebec Interculturalism’, report prepared for Centaur Jurisprudence Project, Centre for Human Rights and Legal Pluralism, McGill University. Dada, J. (2012), ‘Human Rights under the Nigerian Constitution: Issues and Problems’, International Journal of Humanities and Social Science, 2 (12), 33–43. Daily Trust (2017), ‘Gender Bill Passage Burden on Nigeria – Sen. Olujimi’, accessed August 12, 2018 at www​.dailytrust​.com​.ng/​news/​general/​gender​-bill​-passage​-burden​-on​-nigeria​-sen​-olujimi/​180405​.html Federation of Muslim Women’s Associations in Nigeria (2018), ‘About Us’, accessed June 8, 2018 at https://​fomwan​.org​.ng/​about​-us Gallo, M. (2017), ‘Bill 62 Is the Result of a Country’s Failure to Decolonize’, Huffington Post, October 11, accessed July 12, 2018 at www​.huffingtonpost​.ca/​miranda​-gallo/​bill​-62​-is​-the​-result​-of​-a​ -countrys​-failure​-to​-decolonize​_a​_23273460/​ Gauch, S. (2002), ‘Fanon on the Surface’, Parallax, 8 (2), 116–28. Golnaraghi, G. and K. Dye (2016), ‘Discourses of Contradiction: A Postcolonial Analysis of Muslim Women and the Veil’, International Journal of Cross-Cultural Management, 16 (2), 137–52. Golnaraghi, G. and A. Mills (2012), ‘Unveiling the Myth of the Muslim Woman: A Postcolonial Critique’, Equality, Diversity and Inclusion: An International Journal, 32 (2), 157–72. Gray, G. (2010), ‘Federalism, Feminism and Multilateral Governance: The Elusive Search for Theory?’, in M. Haussman, M. Sawer and J. Vickers (eds), Federalism, Feminism and Multilevel Governance, Vermont: Ashgate. Human Rights Watch (2004), ‘Political Shari’a ?’, accessed July 14, 2018 at www​.hrw​.org/​report/​2004/​ 09/​21/​political​-sharia/​human​-rights​-and​-islamic​-law​-northern​-nigeria

Federalism, gender equality and religious rights  61 Inter-Parliamentary Union (2018), ‘Women in National Parliaments’, accessed July 14, 2018 at http://​ archive​.ipu​.org/​wmn​-e/​classif​.htm IPSOS (2017), ‘Majority (68%) of Canadians Support Bill 62-Style Law in their Province’, accessed July 12, 2018 at www​.ipsos​.com/​en​-ca/​news​-polls/​quebec​-bill​-62 Juteau, D. (2002), ‘The Citizen Makes an Entrée: Redefining the National Community in Quebec’, Citizenship Studies, 6 (4), 441–58. Kangiwa, A. (2015), ‘Gender Discrimination and Feminism in Nigeria’, International Journal of Economics, Commerce and Management, 3 (7), 752–68. Laframboise, Kalina (2018), ‘François Legault Doubles Down on Religious Symbol Ban after Meeting with Justin Trudeau’, accessed October 18, 2018 at https://​ globalnews​ .ca/​ news/​ 4539417/​ legault​ -religious​-symbol​-ban​-meeting​-trudeau/​ Lander, E. (2002), ‘Eurocentrism, Modern Knowledges, and the “Natural” Order of Global Capital’, Nepantla: Views from South, 3 (2), 245–63. Lattimer, Mark (2010), ‘State of the World’s Minorities and Indigenous Peoples 2010’, accessed October 25, 2018 at https://​unngls​.org/​index​.php/​un​-ngls​_news​_archives/​2010/​1954​-state​-of​-the​-world​%E2​ %80​%99s​-minorities​-and​-indigenous​-peoples​-2010 Nasir, Jamila (2007), ‘Sharia Implementation and Female Muslims in Nigeria’s Sharia States’, in Philip Ostien (ed.), Sharia Implementation in Northern Nigeria 1996–2006: A Sourcebook, Ibadan: Spectrum Books, 76–118. Oba, A. (2011), ‘Religious and Customary Laws in Nigeria’, Emory International Law Review, 25 (2), 881–95. O’Neill, B., Gidengil, E., C. Côté and L. Young (2015), ‘Freedom of Religion, Women’s Agency and Banning the Face Veil: The Role of Feminist Beliefs in Shaping Women’s Opinion’, Ethnic and Racial Studies, 38 (11), 1886–901. Ochonu, M. (2014), ‘The Roots of Nigeria’s Religious and Ethnic Conflict’, Global Post, March, 10, accessed July 8, 2018 at www​.pri​.org/​stories/​2014​-03​-10/​roots​-nigerias​-religious​-and​-ethnic​-conflict, 15. Ogbu, O. (2014), ‘Is Nigeria a Secular State? Law, Human Rights and Religion in Context’, Transnational Human Rights Review, 1, 1–23. Olarinmoye, O. (2013), ‘Negotiating Empowerment: Women and Identity in Nigeria’, International Journal of Sociology and Anthropology, 5 (3), 59–65. Ooommen, T.K. (1999), ‘Recognizing Multiple Modernities: A Prelude to Understanding Globalization’, Jawaharlal Nehru University. Para-Mallam, Funmi Josephine (2017), ‘Gender, Citizenship and Democratic Governance in Nigeria’, in Funmi Soetan and Bola Akanji (eds), Women in Nigeria: 100 Years of Nationhood, Washington, DC: Lexington Books, 1–47. Payton, M. (2016), ‘Nigerian Senate Votes Down Gender Equality Bill due to “Religious Beliefs”’, Independent, March 17, accessed October 8, 2018 at www​.independent​.co​.uk/​news/​world/​africa/​ nigerian​-senate​-votes​-down​-gender​-equality​-bill​-due​- to-religious-beliefs-a6936021.html Peritz, I. (2017), ‘“It’s Going to Encourage More Hate”: Women in Quebec Who Wear Niqab Speak Out against Bill 62’, Globe and Mail, October 28, 2018, accessed July 28, 2018 at www​.theglobeandmail​ .com/​news/​national/​quebec​-women​-who​-wear​-the​-niqab​-fear​-impact​-of​-bill​-62/​article36753623/​ Pew Forum (2012), ‘The Global Religious Landscape’, accessed June 27, 2018 at www​.pewforum​.org/​ 2012/​12/​18/​global​-religious​-landscape​-exec/​ Pour les droits des femmes du Quebec (2016), Presentation to the Quebec National Assembly Parliamentary Committee on Special Consultations and Public Hearings on Bill 62, an Act to foster adherence to State religious neutrality and, in particular, to provide a framework for religious accommodation requests in certain bodies, October 18, accessed July 10, 2018 at www​.assnat​.qc​.ca/​en/​ travaux​-parlementaires/​commissions/​ci/​mandats/​Mandat​-36307/​index​.html Quane, H. (2013), ‘Legal Pluralism and International Human Rights Law: Inherently Incompatible, Mutually Reinforcing or Something in Between?’, Oxford Journal of Legal Studies, 33 (4), 675–702. Sawer, Marian and Jill Vickers (2010), ‘Introduction: Political Architecture and Its Gender Impact’, in Melissa Haussman, Marian Sawyer and Jill Vickers (eds), Federalism, Feminism and Multilevel Governance, Vermont: Ashgate, 3–19. Sharify-Funk, M. (2011), ‘Governing the Face Veil: Quebec’s Bill 94 and the Transnational Politics of Women’s Identity’, International Journal of Canadian Studies 43, 135–63.

62  Handbook on gender, diversity and federalism Sodiq, Y. (2009), ‘Can Muslims and Christians Live Together Peacefully in Nigeria?’, Muslim World, 99 (4), 644–88. Stepan, Alfred (2010), ‘The Multiple Secularisms of Modern Democratic and Non-Democratic Regimes’, paper presented at American Political Science Association Meeting, Washington, DC, September 2–5. Suberu, R. (2015), ‘Managing Constitutional Change in the Nigerian Federation’, Publius, 45 (4), 552–79. United Nations (2017), ‘Committee on the Elimination of Discrimination against Women Examines the Reports of Nigeria’, accessed November 10, 2018 at www​.ohchr​.org/​en/​NewsEvents/​Pages/​ DisplayNews​.aspx​?NewsID​=​21879​&​LangID​=​E United Nations (2018), ‘Ratification Status for Canada’, accessed October 12, 2018 at https://​tbinternet​ .ohchr​.org/​_layouts/​TreatyBodyExternal/​Treaty​.aspx​?CountryID​=​127​&​Lang​=​EN United Nations (2018), ‘Ratification Status for Nigeria’, accessed October 12, 2018 at https://​tbinternet​ .ohchr​.org/​_layouts/​TreatyBodyExternal/​Treaty​.aspx​?CountryID​=​127​&​Lang​=​EN Vickers, J. (2010), ‘A Two-Way Street: Federalism and Women’s Politics in Canada and the United States’, Publius, 40 (3), 412–35.

5. Federalism and women’s descriptive representation Daniel Stockemer and Michael J. Wigginton

5.1 INTRODUCTION Federalism is a much discussed institutional feature of a country. At its basis, the dichotomy – federal versus unitary state – structures how central and regional units work with each other and share power (Cameron 2009; Fossum and Jachtenfuchs 2017). There are large ongoing debates about how the sharing of power between state-wide and regional units influences various developmental indicators ranging from economic growth to good governance, stability and peace (see Wibbels 2000; Brueckner 2006). In the field of women and politics, there is a similar debate on whether federalism helps advance women’s rights and demands. The literature is equally split about federalism’s effects (see Tuschhoff 1999; Vickers 2013a): on the one hand, federalism can provide more opportunities for women (and other disadvantaged groups) to lobby their demands, as there are more access points to power (Orsini 2002). On the other hand, federalism can block progressive reforms, especially in areas of reproductive rights, health care and education, because there are more potential veto points or hurdles that these reforms need to jump before they can become law (Baines 2006).1 Rather absent from the debate on federalism and substantive representation is the intermediate layer of women’s descriptive representation. As of 2019, there is some consensus that higher descriptive representation of women also leads to more substantive representation (Wängnerud 2009; Arnesen and Peters 2018). From this understanding, one way that federalism could help the advancement of women’s issues is through the promotion of more female legislators in parliaments. In this chapter, we analyze the degree to which this is the case. To do so, we have collected available data for all countries across the globe for our dependent variable, women’s representation in national legislatures our independent variable, federalism and several control variables (e.g. quota provisions, the electoral system type and the extent of societal gender equality), which should also affect women’s descriptive representation. Depending on the definition of federalism used, we find that, in the absolute, federal states have seven percentage points more women legislators if we use a legal definition of federalism and two percentage points more if we use a less stringent, more functional definition. Yet, in neither case is this difference statistically significantly different from zero in the multivariate model. Regardless of how we define a federation, we also find that, more than unitary states, federal states entice parties to adopt gender quotas on the national level. Yet again, this difference is not statistically significant in the multivariate framework. This chapter continues as follows. In the next section, we situate our study in the literature on federalism and women’s descriptive representation. In the third section, we introduce the variables, data and methods. We then explore the results of this mainly quantitative study at the national level. Finally, we summarize the main findings and suggest some avenues for future research. 63

64  Handbook on gender, diversity and federalism

5.2

INSTITUTIONS, FEDERALISM AND WOMEN’S DESCRIPTIVE REPRESENTATION

Institutional characteristics are central for explaining high levels of women’s descriptive representation in central legislatures. According to the gender-focused literature, the two key institutional variables are the type of electoral system and electoral quotas. Pertaining to the former variable, there is (near) consensus in the literature that, on average, proportional systems elect a greater proportion of women to elected office than majoritarian or plurality systems (McAllister and Studlar 2002; Norris 2006; Salmond 2006). Similarly, numerous studies have found that legislated gender quotas or reserved seats for women substantially increase their rate of descriptive representation (Krook 2006; 2009; Hughes 2011). The same applies, albeit less strongly, to party quotas (O’Brien and Rickne 2016). Yet, in the probably hundreds of studies that have looked at how institutional features impact women’s representation at the national level, the difference between federal and unitary states has received relatively little study. In studies of women in politics, federalism is most often linked to women’s substantive representation, particularly in how it influences the process of policy formation. As Orsini (2002) notes when it comes to tainted blood activism in Canada, federalism can greatly alter the political opportunity structure for policy formation. Rather than being limited to the central government, activists also have the option of appealing to regional governments. Despite the fact that lobbying at different levels can be costly, in terms of resources needed (see Haussman 2005), the availability of different access points can be advantageous for activists. A regional layer of power can provide a second venue for policy formation; due to its closer physical proximity, it can simplify the logistics of lobbying. The altered opportunity structures of federalism’s multilevel governance structures can play a crucial role in policy formation around gender issues. For instance, using the example of domestic violence policy, Chappell and Costello (2011) argue that Australia’s federal structure allows activists to take advantage of ‘venue shopping’ to find the most amenable level of government. Similarly, in the case of family law, Vickers (2013b) finds that federalism can advance reform efforts in cases where meso-level governments control family law and the central government is slow to push reforms. Yet, Vickers’ (2013b) study also highlights that much of the literature on federalism and gender finds a substantial degree of divergence between cases – that is, the literature does not find federalism to universally inhibit or promote women’s representation. As Vickers (2013a) explains in another article, federalism can present either an opportunity or an obstacle for achieving women’s substantive representation, depending on specific circumstances. Focusing on the negative ‘side effects’ of federalism, Baines (2006) argues that rather than present multiple venues for policy formation, the implementation of federalism in Canada artificially divides women and limits their access to social programs. Similarly, Hueglin and Fenna (2015) highlight that federations often have rigid constitutional amendment procedures that require the approval of supermajorities to alter the division of powers. Moreover, as Vickers (2010) and Haussman (2005) demonstrate regarding abortion rights, activists frequently see existing federal arrangements as unfavorable to the advancement of women’s interests and issues due to the need to lobby at multiple levels. When it comes to women’s descriptive representation, the role played by federalism is even less clear. While several studies have addressed how federalism affects women through policy formation and activism, few have directly addressed how, or if at all, federalism influences

Federalism and women’s descriptive representation  65 the number of women elected to legislatures. Nevertheless, examining the link between federalism and women’s descriptive representation is an important aspect in understanding the gender-federalism nexus because substantive and descriptive representation are interrelated. On theoretical grounds, many have argued that having a representative who shares their gender is in itself a component of substantively representing women (see, for example, Phillips 1998; Mansbridge 1999; Dovi 2002). Functionally as well, many studies have established a link between the gender composition of a legislative body and the gender-related legislation it does or does not adopt. Swers (2005), for example, finds in studying the United States Congress that the gender of legislators does correlate with the legislation they sponsor even when controlling for party and ideology. Moreover, she finds that women are more likely to sponsor bills pertaining to gender-focused policy fields such as women’s health. Similarly, in an analysis of budget debates in the Belgian lower house, Celis (2006) discovers that women legislators intervened in favor of women’s issues more often than their male counterparts, and on average addressed a broader range of women’s issues during interventions. While the notion of a ‘critical mass’ of female legislators achieving substantive representation is increasingly questioned (Studlar and McAllister 2002; Childs and Krook 2006; Tremblay 2006), many authors still think that descriptive and substantive representation are closely linked (see Celis and Childs 2008; Cowell-Meyers and Langbein 2009). Hence, one way federalism could have a positive influence on substantive representation is through the intermediary of descriptive representation. Simply stated, by adding a regional level of representation, federalism could increase the overall number of seats to be distributed. More seats could then translate into less competition and more chances for marginalized groups such as women. Therefore, federal states could increase women’s access to political office by providing a wider range of opportunities than unitary states do, both in the form of regional governments and the universal presence of upper houses in central governments (see, for example, Simms 2001). For example, regarding Scotland, Mackay (2010) argues that devolution in the United Kingdom created new opportunities for getting elected and for policy formation, to the benefit of both women’s descriptive and substantive representation. As with policy formation, however, this change in government structure may present advantages or disadvantages for women’s representation in the central government, as women may instead choose to seek office in a regional government or in the upper house. Hence it may also be possible that federalism inhibits the formation of a ‘critical mass’ of female legislators by dispersing interested candidates between various levels and houses of government. Vickers (2018), for example, highlights that some federations see higher rates of women representatives in regional governments than in the central government, although the reverse is true for the majority. This research, however, remains incomplete due to the general lack of standardized data for regional governments, making large-scale comparative studies prohibitively difficult. Not only federalism as such but also policy reforms that promote federal arrangements could impact women’s descriptive representation. As Kenny and Verge (2013) note in their comparison of Spain and the United Kingdom, the adoption of devolved governments impacts the internal structures of political parties, prompting them to either devolve power regionally within the party or to resist such changes by strengthening central control. These changes, in turn, alter the opportunity structure for making changes in the party’s internal policies, most notably through the adoption of gender quotas for candidate selection (Kenny and Verge 2013). In the case of the Scottish Parliament, Mackay (2006) argues that the general ‘newness’

66  Handbook on gender, diversity and federalism of devolved parliaments contributed to parties’ willingness to adopt gender quotas and other ‘women-friendly’ policies. Although the above-mentioned studies address the opportunity structures for women’s access to office in federal states, very little scholarship has directly addressed comparative rates of women’s descriptive representation between federal and unitary states, even less about such rates in central versus regional legislatures. Vickers (2010, 417) notes that few federations have fewer than 30 per cent women legislators in their central governments, but that those states with the highest levels of women’s representation are unitary in structure. In terms of studies that directly address the question of how federalism impacts women’s share of seats in central legislatures, the only large-N quantitative example is Stockemer and Tremblay’s 2015 analysis of 99 state-wide central legislatures between 1990 and 2010. Controlling for other institutional factors, they find that federations, on average, have slightly more women in their central legislatures than unitary states. This chapter builds on Stockemer and Tremblay (2015) and provides a much needed update on women’s status in terms of descriptive representation in the central legislatures of federations versus unitary states. This applies even more considering that Stockemer and Tremblay (2015) ‘only’ covered the period up to 2010. This chapter uses data for nearly ten years later, revisiting the question: do federations still exhibit any small positive influence on women’s descriptive representation? If so, to what extent? We tackle this question by using cross-sectional data for 2018 and test both the direct influence of federalism on women’s representation in central governments as well as its indirect impact.

5.3

VARIABLES AND DATA

The dependent variable of this study is women’s descriptive representation, operationalized by the percentage of female deputies in a country’s central legislature. The data source is the Inter-Parliamentary Union (2019). To define federalism, our independent variable, we follow a classical definition according to which the activities of a federal state’s government are divided into a central government and regional governments (Riker 1964; Elazar 1997). This separation of powers generally results in two distinct characteristics of federalism: (1) political federalism or the existence of regional legislatures and elections and (2) fiscal federalism or the possibility that regional units have their own financial resources to spend either through money transfers from the federal level or through proper taxation authority (Watts 1999). Such a separation of power further entails that there are some policy areas such as foreign affairs or defense policy, which are under the jurisdiction of the central government, whereas other policy areas such as education are the sole responsibility of regional units. We use two operational definitions to code a state as ‘federal’. The first definition requires constitutionally guaranteed safeguards for local and regional political and fiscal autonomy. We code countries that have this constitutionally guaranteed autonomy to legislate and receive financial resources or tax in certain policy areas, as federal states (coded 1) and all other states as unitary states (coded 0).2 The data are derived from the Forum of Federations (2019). The second indicator we employ uses a less stringent definition of federalism, according to which a federation is any state which has (semi-)autonomous regional political unit(s) or subordinate regional governments, regardless of whether the central government is weak or strong, and regardless of the constitutional status of these governments. We operationalize this second

Federalism and women’s descriptive representation  67 definition by another dummy variable, coded 1 if the criterion for local autonomy is met and 0 otherwise. These data stem from the Institutions and Elections Project (Wig et al. 2015) and are also represented in QoG Standard Data (Teorell et al. 2019). This second federalism indicator is widely used in the political institution literature (e.g. Heller et al. 2016; Baturo and Elgie 2018), it is also a bit more encompassing than the Institutions and Elections Project federalism data. For example, while both measures include constitutional federations such as Argentina, Canada and Venezuela in the category federation, the second measure also includes countries with regional governments such as Italy, Morocco and the Netherlands.3 In addition to our variable of interest, federalism, we also control for relevant institutional, cultural and socio-economic indicators, which might also influence women’s legislative representation. First, we control for national-level gender quotas, including both those set out in legislation legislative and those voluntarily adopted by political parties (Krook 2009; Hughes 2011). Both quota measures are intended to be a fast track to include more women in elected office. They have both a direct and an indirect effect. Directly, they guarantee the election of a certain percentage of women (depending on the quota level and the application of the quota). Indirectly, quotas might entice more women to run; by showing that politics is not only a male domain, but an area in which women have their place, as well (Hansson 2018). To distinguish different types of quotas, we add two dummy variables, one for legislative quotas (coded 1 if there is a legislative quota or a reserved seats’ provision in place) and one for party quotas (coded 1 if at least one legislative party in a country has internal quota provisions). We derived the data for both variables from the International IDEA (2019a). Second, we control for the type of electoral system and hypothesize that proportional representation (PR) triggers higher percentages of women legislators. In contrast to the zero-sum mentality under plurality, which benefits men, PR should entice parties to diversify their slates by including more women on electoral lists (Norris 2006; Salmond 2006). To test this stipulation, we include two dummy variables to the model, one for PR and one for mixed systems, with plurality serving as the reference category. This coding follows the International IDEA (2019b) Electoral System Design Database. Third, we control for the regime type of a country and distinguish between democracies (coded 1) and non-democracies (coded 1). Per its self-definition, a democracy should offer all citizens equal rights, duties and chances (Tripp 2015; Stockemer and Kchouk 2017). This should include equal opportunities for women to run for and hold office in central legislatures. In hybrid regimes and even less so autocracies, this constitutional self-definition is frequently not provided, and women might have fewer chances to access political power. Our dummy variable for democracy comes from Wahman et al. (2013), as complied in the QoG Standard Data (Teorell et al. 2019). The next control variable is the number of years women have had the right to vote in central government elections, as calculated by Paxton et al. (2008). This indicator has both an institutional component and a cultural component (Gilardi 2015). Institutionally, it is related to women’s citizenship rights: the earlier women have had the right to vote, the quicker subsequent generations of women become habituated to voting and running for office. The variable also has a cultural component, as countries that granted women voting rights earlier could be considered culturally more progressive (Tripp 2016). The next control variable is the UNDP Gender Inequality Index (2019) which measures differences between men and women in three areas: reproductive health, empowerment and labor force participation. This indicator is used as a proxy for the dominant political culture of a country (see Paxton and Hughes 2015) with the assumption that countries with no or few

68  Handbook on gender, diversity and federalism differences across the three dimensions are states with high gender equality. In contrast, countries with strong discrepancies between the formal and practical rights for men and women are unequal countries in terms of gender relations in our definition. The final two control variables are economic development and corruption. For the first variable, economic development, modernization theory postulates that economic development triggers value changes away from traditional survival values and towards progressive and post-modernist values (Inglehart 1997). This post-materialist value shift should also increase women’s descriptive representation (Inglehart and Norris 2003). We operationalize development by a country’s gross domestic product (GDP) (purchasing power parity) in United States dollars using data from the World Bank (2019a). Finally, we control for corruption and expect corruption to put a drain on women’s representation. In corrupt countries, men, who try to nominate and appoint individuals to positions of power that act and look like themselves (Sundström and Stockemer 2015), frequently dominate the homosocial networks or gatekeepers for access to higher-echelon positions in society. In most cases, these are elderly men of the dominant ethnicity (Bjarnegård 2013). We operationalize corruption by the World Bank Control of Corruption Indicator (World Bank 2019b).4

5.4 METHODS To test the influence of federalism and the control variables on women’s representation in national government legislatures, we have assembled all available data (i.e. we have data for 193 countries for our main variables federalism and women’s representation, and data for 158 countries for all variables). We use these data for different types of analysis. First, we display bivariate tests (i.e. tests of only two variables) to determine if there is any relationship between either of the two federalism indicators and women’s descriptive representation. Second, we present the results of two multiple regression analyses. On the left-hand side of each model is the dependent variable, women’s representation in country-wide legislatures. On the right-hand side is any of the two federalism proxies, respectively, as well as all the control variables. Because we have cross-sectional data that are nearly normally distributed, we proceed with a regular Ordinary Least Squares regression analysis. We run one model with any of the two federalism proxies (see Models 1 and 2). Third, we test for the indirect influence of federalism on women’s descriptive representation. To do so, we check whether either of the two federalism indicators influences any of the other statistically significant variables in the women’s representation equation. The analytical device to test this is an independent samples’ T-Test. Since our bivariate results indicate that (constitutional) federations are more likely to adopt party quotas, we test whether this indirect effect persists in a multivariate framework. To do so, we use logistic regression analysis. On the left-hand side is the dummy variable, party quotas, and on the right-hand side are the same independent variables as in our main models (see Models 1 and 2). Again we run two models (i.e. Models 3 and 4), one for each federalism indicator.

Federalism and women’s descriptive representation  69 Table 5.1

Bivariate relationship between federalism and women’s descriptive representation Women’s representation

Federalism (Forum of Federations Federalism Indicator) Unitary state Difference (in per cent)

27.14 21.03 6.11***

Federalism (Institutions and Elections Project Federalism Indicator)

23.69

Centralist state

21.24

Difference (in per cent)

2.45

Notes: Standard errors in parentheses, *p