Irish Centre for Human Rights Blog

Dr Anna Arstein-Kerslake is the Programme Director of the LLM in International Human Rights Law at the Irish Centre for Human Rights, National University of Ireland Galway. She is also an Associate Professor at Melbourne Law School, University of Melbourne. Her research and advocacy focuses on the right to legal personhood and she provided consultation for the first United Nations general comment on the subject in 2014.

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After engaging in several years of activism and scholarship on the right to legal personhood of people with disabilities, it struck me that almost every minority group is suffering from some form of denial of legal personhood – and, those denials, are often some of the most powerful forms of marginalisation. In particular, I began noticing the frequency of denials of legal personhood on the basis of gender. To explore this more fully – and it’s potential as an innovative new human rights argument – I undertook research which resulted in the publication of my book, Legal Capacity and Gender (Springer 2021). Significantly more research is needed, however, the following is a brief overview of my research findings that are included in the book.

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Legal personhood is the recognition of an individual as a holder of rights and legal actor. It is required for the recognition and enforcement of the individual’s decisions. Without legal personhood, the individual is left virtually powerless in our neo-liberal capitalist world that is predicated on the individual acting in their own interest, seeking benefit, and autonomously negotiating privilege for themselves. Women, disabled women, and gender minorities lack power and privilege, in part, due to historical and modern denials of legal personhood that leave them either completely overlooked by the legal system or transformed into objects that can be controlled by others.

The right to legal personhood was established in international human rights law in the Universal Declaration of Human Rights (Article 6) – and was further elaborated in several proceeding treaties, including the International Covenant of Civil and Political Rights (ICCPR, Article 16), the Convention on the Elimination of Discrimination Against Women (CEDAW, Article 15), and the Convention on the Rights of Persons with Disabilities (CRPD, Article 12). However, it has been given relatively little attention. Human rights bodies have reiterated the right many times, although rarely provide detail on how it is denied or what states should do to protect and promote the right. Human rights scholars have only recently taken up research and writing in the area. Even activists rarely articulate their demands in the context of the right to legal personhood.

One of the most common forms of denial of legal personhood is barriers to the recognition and enforcement of decisions. Women, disabled women, and gender minorities, in particular, experience these denials at high rates. Historically, women’s decision-making has not been enforced in relation to voting, inheritance, contracting and many other areas—some of which continue today. In addition, it is only within the last 50 years that most jurisdictions have abolished laws that remove a woman’s legal personhood upon marriage and give it to her husband. Disabled women, in particular, experience decision-making denial via explicit legislation such as guardianship, mental health laws and capacity to consent to sex laws. For example, many jurisdictions maintain legislation that criminalises all sexual activity with women with cognitive disabilities, such as a learning disability or mental health disability. This effectively removes any opportunity for them to choose to engage in sexual activity – all activity they engage in is criminalised. In addition, gender minorities experience decision-making denials in many areas – for example, when government issued identification requires gender binary identification and is a pre-requisite for contracting. In these situations, it may be impossible or very dangerous for some gender minorities to acquire or use such documentation — resulting in an inability to contract in various areas of life, including employment, goods and services, and others. In these ways and many others, disability, gender, and the intersection between the two, can result in marginalisation through barriers to decision-making, which is a denial of legal personhood.

One commonality between these groups is that the denial of decision-making has often resulted from the prejudicial notion that individuals in these groups lack the appropriate level of rationality or cognitive skills to engage in legal decision-making. For example, women have been burdened with the assumption that their bodies—and their reproductive systems, in particular—render them irrational or ‘hysterical.’ Disabled women are burdened with the vastly overinclusive notion that disability renders an individual deficient in decision-making skills. Gender minorities are often erroneously thought of as suffering from a mental illness and may be perceived to be unable to make rational choices for themselves. In these ways, the historical notion of irrationality of women, disabled women, and gender minorities may be contributing to legal structures and social systems that deny legal personhood.

There is increasing attention being given to the right to legal personhood. However, most reform efforts, activists, and scholars have not framed their struggle as one for the realisation of the right to legal personhood. I believe that there are several possible reasons for this—the right may feel like an abstract concept that is not relevant to on-the-ground reform efforts. There is also a relative lack of information regarding the right—there has not been significant engagement with the right from UN bodies, as mentioned above. It may also be the case, in some specific reform efforts, that framing them in the context of the right to legal personhood is not perceived to be the best strategy for achieving the desired reform. However, I believe that the right to legal personhood has the potential to shed new light on some of the most systemic forms of marginalisation. Demanding equal legal personhood for women, disabled women, and gender minorities, for example, would require ensuring that they have equal recognition as rights holders and decision-makers before the law. Applying this, would require the abolition of many of the most oppressive laws and social structures and would force new protection for the enforcement of their decisions. This would require, for example, equal rights to contracting and employment for women; recognition of all forms of gender identity; and new structures to empower and support the legal decision-making of these groups.

The power of the right to legal personhood, I believe, is its simplicity. To most, it feels self-evident that all people have a right to legal personhood. It is only when you begin examining all the various ways that it is denied to particular groups that you begin to see that although it feels self-evident that everyone should have this right, it is pervasively denied to many. I believe that this simplicity and the accompanying paradox of the elusiveness of the right are what give it the potential to be so powerful.