Our project explores the intersection among three axes: i. the mobilization of rights discourses to promote equality, social justice, and the strengthening of democracy; ii. the meanings and uses of the category "gender" in these discourses; and iii. the distribution of rights and resources that occur in this dynamic.
In this sense, our project interrogates the utility of gender, its strategic applications in the context of rights discourses, and the legitimation that results from this process of specific demands for change and the obscuring of others. To do this, we propose using transformative constitutionalism and distributive analysis as a frame of reference. The notion of transformative constitutionalism refers to a way of understanding, producing, and applying the law, which is considered a valuable, powerful, and suitable tool for promoting more just societies. In this sense, transformative constitutionalism is both a descriptive and normative term. Descriptive, in that it is a category that allows the identification and analysis of how the law is strategically used to promote social changes that prevent and eradicate discrimination and generate the redistribution of resources. Normative, in that it encompasses the aspiration that the law can contribute to achieving such transformation and that such transformation should be generally in line with democratic values and the protection of human rights. Distributive analysis of the law, in turn, is critical of some dimensions of transformative constitutionalism. Beyond securing constitutional entitlements, the distributive analysis of the law highlights the importance of asking who benefits, how, and where, and conversely, who may be harmed by constitutional settlements – including those whose interests are promoted by civil society organizations. Distributive analysis has thus made it possible to question legal reform agendas as a strategy for promoting desirable social changes. This does not imply an a priori critique of any emancipation project that uses the law to encourage desired social justice but a call for caution. For this reason, its study can offer insights into the scope and limitations of transformative constitutionalism and how the dynamics observed under its lens foster adjustments in distribution.

The category of “gender” is central to this tension. On the one hand, it has been an essential and effective platform for legal mobilization, seeking to secure constitutional guarantees for women and LGBTQI+ people that transform deeply entrenched structures of gendered power. For example, “gender” has been crucial in some abortion litigations, the recognition of equal marriage, or the constitutional enshrinement of gender quotas, which are often seen as evidence of harbingers of the transformative potential of law in terms of gender, particularly in the Global South. At the same time, gender is also a category that distributes burdens and benefits through the law. Legal regulation has been vital in drawing the public/private division that has facilitated the dynamics of discrimination against women. Similarly, the regulation of what is understood by sex and marriage has been crucial in excluding populations with diverse sexual orientations and gender identities. The gender category provides sobering evidence of the potential of law for distributing resources along gender lines in a way that perpetuates structures of gender domination.
There is, therefore, promise and serious limitations in using “gender” as a transformative category. Our project is located in that liminal space. Gender has been vital in identifying, criticizing, and implementing solutions to liberalism's shortcomings regarding sex-based discrimination. It has complemented liberalism and provided the language for a transformative agenda. Indeed, gender is a powerful concept. It is a useful category for legal and political analysis and a notion that enables the analyst to read the past in a different light, set the transformative agenda of the present, and imagine a non-discriminatory future. In particular, “gender” is dynamic, always updating, thus allowing transformative agendas expressed in gender terms to be in constant flux and adaptation. Gender is a tool of reinterpretation and projection. However, distributive analysis has made the drawbacks of this alliance visible. We aim to heed the critique without dispensing with the transformative potential of gender as a robust category of analysis. Gender’s ability to trigger social transformation is undermined when mistakenly considered a fully crystallized identity or when it is reified as the synonym of unnecessarily narrow types of discrimination. Despite its potential, gender could, at times, “drag” discriminatory legacies when put into action and turn into a limited tool for transformation.

Our project seeks to engage in a post-critical exercise of thinking about gender’s possibilities in transformative constitutionalism. Having learned the lessons of the distributive critique, what futures can we imagine for the “gender” as a platform for social change through law?