Tag Archives: International


Case Comment: Cece v. Holder

Case Comment

Yana Mereminsky[1]

Cece v. Holder, 733 F.3d 662 (7th Cir. 2013).

Click here to access a PDF version of this case comment.

Through the granting of asylum, refugee law aims to protect those who are fundamentally marginalized in their country because of characteristics over which they have no control.[2] If an alien can demonstrate that she is unable or unwilling to return to her country of origin because of either persecution or a well-founded fear of future persecution on account of her “membership in a particular social group,” (hereinafter, “PSG”) she may qualify as a refugee eligible for asylum.[3]

In Cece, an Albanian alien fled her country and applied for asylum in the US claiming a gender-based PSG that made her an ideal target for prostitution and trafficking in her home country. Although the Board of Immigration Appeals (hereinafter, “Board”) denied Cece’s asylum claim, the Seventh Circuit vacated the Board’s holding, finding that Cece’s proposed PSG was not too broad since it was consistent with other approved PSGs in the Board’s precedent. The court’s decision represents a progressive step – though not the first – in American asylum law toward recognizing more broadly and simply defined gender-based PSGs instead of the narrow PSGs that have led to asylum denials for deserving applicants in years past. Applicants may better present their claims under broadly defined gender-based PSGs when they are not hampered by the intricacies of judge-imposed defining language, which can be both circular and unfairly disadvantageous. Broader defined PSGs are also less likely to conflate other asylum criteria, like the nexus requirement, with PSG eligibility. Consequently, the frequently raised fear, which Judge Easterbrook presents in his Cece dissent, that broad PSGs will allow too many refugees into America is misplaced.


Johana Cece, an Albanian native, fled her country and arrived in the US in 2002 seeking asylum.[4] While Cece was living alone in Korce, Albania, a well-known criminal gang leader named Reqi began following her around and asking her on dates.[5] Cece knew that Reqi and his gang were known for participation in prostitution rings, murder, and the drug trade while enjoying complete immunity from the law.[6] In June 2001, Reqi followed Cece into a cosmetics store, pinned her against a wall, and threatened that he would make her do anything he wanted.[7] No one in the store came to Cece’s aid,[8] and when she reported the assault, the police dismissed it for lack of proof.[9] A few days after the incident, someone threw a rock through Cece’s window, and fearing for her safety, she went to stay in a dormitory with her sister in Tirana, 120 miles from Korce.[10] Her sister left one year later, and Cece, having lost access to the dormitory, was forced to live alone again.[11]

Cece fled to the US and applied for asylum and withholding of removal asserting that she feared returning to Albania because she believed she would be kidnapped and forced into a prostitution ring.[12][13] She claimed that as a single woman living alone in Albania, she would be a target for Reqi’s gang no matter where she lived.[14]

A.    Immigration Hearing

At the immigration hearing, the immigration judge granted Cece asylum, determining that she belonged to the PSG of “young women who are targeted for prostitution by traffickers in Albania,” that the Albanian government was unwilling or unable to protect these women, and that Cece’s testimony was credible and her fear reasonable.[15]

Also during the hearing, Dr. Bernd Fischer, a professor of Balkan History, described Cece’s experience as “unfortunately usual” and testified that it is an anomaly for a single woman to live alone in Albania, adding that this would make her an ideal target for a human trafficker.[16] He further stated that trafficking of single women pervades everywhere in Albania, not just Cece’s village, Korce, and although gangs primarily target women between the ages of sixteen and twenty-six, older women are also trafficking targets.[17] Finally, Dr. Fischer explained that the Albanian state does not adequately punish traffickers.[18]

B.    Board of Immigration Appeals

Subsequently, however, the Board vacated the immigration judge’s decision, finding that Cece had failed to establish past persecution and had successfully relocated within Albania.[19] The Board specifically found that the immigration judge erred in affirming Cece’s PSG and noted that a social group must be visible and united by more than the risk of persecution to be eligible.[20]

C.    Remand and Subsequent Appeal

On remand, the immigration judge recognized that he was bound by the Board’s determinations and denied Cece’s claim for asylum. After her second appeal was dismissed by the Board,[21] Cece appealed to the Seventh Circuit.[22]

D.   Seventh Circuit

On February 6, 2012, a three-judge panel of the Seventh Circuit Court of Appeals granted Cece’s petition for rehearing en banc and vacated the Board’s opinion and judgment.[23] Judge Rovner began the Seventh Circuit decision by stating the statutory asylum eligibility requirement:  To be eligible for asylum, an applicant must show that she is “unable or unwilling to return” to the country of her nationality “because of persecution or a well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.”[24] The applicant must then establish “a nexus between her fear of future persecution and one of those five protected grounds.”[25] An applicant who successfully proves past persecution is “presumed to have a well-founded fear of future persecution, which the Attorney General can rebut by demonstrating a change in conditions in the applicant’s home country.”[26]

The issue in this case was whether Cece sufficiently demonstrated that she belonged to a PSG that is cognizable under the Immigration and Nationality Act.[27] Because Congress has not directly addressed what it means precisely by “social group,” the court deferred to the Board’s interpretation.[28] The Board had previously held “social groups” to be “groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change.”[29] For example, it would not have been appropriate to ask Cece to marry a man who could protect her because her decision to marry someone of her own choice was too fundamental to her identity and conscience.[30]

The court disagreed with the Board’s conclusion that Cece’s social group “[was] defined in large part by the harm inflicted on the group, and [did] not exist independently of the traffickers.”[31] Even if other individuals who share Cece’s common characteristics suffered past persecution or had a well-founded fear of future persecution, this did not mean that persecution was the only element that linked the social group.[32] Thus the Seventh Circuit recognized Cece’s PSG by focusing on its fundamental, immutable characteristics instead of the persecution its members endured or feared. The individuals in this group were united by the common and immutable characteristics of being (1) young, (2) Albanian, (3) women, (4) living alone, which made them an ideal target for trafficking.[33] These elements combined to form a PSG of young, single, Albanian women living alone who fear prostitution.[34]

Judge Rovner concluded that although the court did not need to decide whether gender per se may constitute a cognizable PSG, gender plus one more narrowing characteristic could.[35] The major problem that the court found with the Board’s rejection of Cece’s (Albanian woman plus “young” plus “single” plus “living alone”) PSG was this rejection’s inconsistency with prior decisions. The court did not think that Cece’s social group was substantively different than that of young women in some African tribes fleeing female genital mutilation practices or Jordanian women fleeing the threat of honor killings – both groups that the Board had previously approved.[36] Given that the Board’s decisions were inconsistent, the court could not condone arbitrariness by picking one of the inconsistent decisions to follow.[37] Thus, the court held that, in rejecting Cece’s social group, the Board erred in light of its own precedent.[38] Because the court was not deciding this issue on first instance (since the Board and immigration judge had all the relevant facts before them), there was no need to remand on the PSG issue.[39][40]  Judge Easterbrook dissented, arguing that Cece’s proposed PSG was much too broad.[41]


            Persecution against women has become an all too frequent tragedy around the world. Female trafficking is one culprit, but other forms of persecution, like those involving female genital mutilation, domestic violence, and forced marriage, also prevail.[42] Asylum reform at the protected grounds stage (the PSG stage in Cece) of the eligibility determination is one way to offer better protection to those women who come to America after suffering persecution on account of their gender or gender plus other immutable characteristics. This reform is proposed in the context of broadening definitions of gender-based PSGs.[43] Gender-based PSG claims are those in which the applicant’s gender is the defining fundamental characteristic or one of the defining fundamental characteristics that led to her past or fear of future persecution.[44]

Broader and simpler definitions for gender-based PSGs have already met approval internationally and even in the Board’s precedent. The UNHCR specifically recognizes women as being particularly vulnerable to trafficking because of gender.[45] Some tribunals of other states have also recognized a trafficking nexus for broad PSGs made of “young women in Albania.”[46] In the American case, Matter of Acosta, the Board held that “social groups” are “groups whose membership is defined by a characteristic that is either immutable or is so fundamental to individual identity or conscience that a person ought not be required to change.”[47] Matter of Acosta then recognized sex – a large group – as an immutable characteristic.[48] Further Board precedent included recognition of PSGs like “women who fear genital mutilation,” “Christian women in Iran who do not wish to adhere to the Islamic female dress code,” and “Iranian women who refuse to conform to the government’s gender-specific laws and social norms.”[49] These definitions are broad because they may encompass a very large number of women; it is easy to imagine that a highly sizable portion of the Albanian female population might fear prostitution if the crime is so prevalent in the country.

Consequently, sweeping PSG definitions have raised concerns in America, the above Board precedent notwithstanding, that recognition of overly broad PSGs will result in admission of intolerably large numbers of refugees.[50] As a result, American attorneys and adjudicators have frequently defined PSGs in trafficking cases more narrowly and circularly.[51] However, I argue below that global and American legal precedent that broadens gender-based PSGs rather than narrowing them is precisely what effective asylum reform requires. Recent global developments involving frequent persecution of women, like trafficking,[52] emphasize the importance of combining gender with other basic Acosta immutable traits to form broadly-recognized PSGs – or even recognizing PSGs defined by gender per se – in certain cases.[53] Moreover, because of other eligibility requirements beyond the PSG definition stage, decisions like these will not open the floodgates to intolerably large numbers of female refugees who fall into these broad PSGs.

The court’s decision in Cece is a sign that American asylum law is moving in the right direction with respect to broadly and simply defined gender-based PSGs. Although the court did not decide the question of whether gender per se can constitute a cognizable PSG (for it had no need to do so), this ruling is a clear stand in favor of the recognition of “gender plus” PSGs. Here, the cognizable PSG consisted of gender plus the elements of being young, single, and living alone in Albania. The court correctly asserted that “women who fear female genital mutilation,” a recognized PSG, and “women who fear prostitution,” are not so different.[54] Prostitution is arguably an equally cognizable harm as FGM. The fact that Cece is single, young, and living alone enhances her potential to be an ideal target for traffickers. These are the underlying characteristics that account for her fear.[55] Judge Easterbrook contended that Cece’s was an ineligible social group because even though the Board would probably acknowledge “Albanian women” as an element in a PSG, it would not recognize “single,” “young,” or “living alone” as such.[56] However, it would be unfair to claim that the Board would not recognize these elements simply because of the language used to describe Cece’s PSG.[57] By looking at the type of fear present in Cece’s PSG – fear of prostitution/trafficking – rather than the language used to describe it, Judge Rovner allowed the court’s decision to comply with the Board’s precedent of granting asylum to aliens with a well-founded fear of persecution based on a gender-based PSG. Asylum law, still a burgeoning area in the American legal field, benefits from such judicially preserved consistency as its case law continues to grow.

Cece is particularly illuminating for its firm distinction between the PSG and nexus requirements in asylum eligibility. Cece was such an ideal target for traffickers precisely on account of the fact that she was a young, single woman living alone. This was not just a group of young, single women living alone who all happened to be trafficked; it was a group of women who had been trafficked or feared being trafficked because they are young, single, and living alone in Albania. By failing to grasp this distinction, Judge Easterbrook did not give due regard to the nexus element of asylum. Consequently, his worry that certain gender-based PSGs are too broadly defined is hasty. Even a gender-based group that includes more members than Cece’s PSG would still have to pass the nexus requirement. In other words, members of that group would still have to fear persecution on account of the elements that define that group. As the Tenth Circuit explained in Niang v. Gonzalez, “[t]here may be understandable concern in using gender as a group-defining characteristic . . . But the focus with respect to such claims should be not on whether either gender constitutes a social group . . . but on whether the members of that group are sufficiently likely to be persecuted that one could say that they are persecuted ‘on account of’ their membership.”[58] This underscores the argument that concerns about overly broad or narrow PSGs should be addressed through other definitional criteria since PSG is only one element of asylum eligibility.[59] By principally defining Cece’s PSG as “women who fear prostitution,” Judge Rovner ensured that elements in Cece’s PSG definition would not be conflated with other requirements of refugee eligibility like nexus. Although she acknowledged the factors that made Cece’s fear well-founded, she did not attempt to stuff the PSG definition with reasons of why Cece’s PSG is persecuted; those reasons belong at the nexus stage of examining Cece’s claim.


            American asylum law scored a victory with the Cece decision. As recent global developments force more women to flee their countries and apply for asylum in the US, judicial recognition of more broadly and simply defined PSGs will grant stronger protection to those with eligible gender-based claims. Broader groups will help prevent conflation of PSG definitions with other requirements of refugee eligibility.  Decisions like the Second Circuit’s rejection of “women who were previously targeted for sex-trafficking by members of [a gang] and who arranged to escape and avoid capture” or the Sixth Circuit’s rejection of “women subjected to rape as a method of governmental control” in their applications for asylum may have turned out differently under broader gender-based PSG definitions sharply separated from other eligibility criteria.[60] Those women’s PSGs may very well have been defined, respectively, as “women who fear sex trafficking” and “women who fear rape.” I would posit that such groups of women at least arguably fall into fundamentally marginalized categories over which they have no control, thus making them precisely the candidates that American asylum law aims to protect. If these women have a good shot at proving their claims,[61] the judiciary should not let overly narrow, PSG definitions deprive them of asylum before they reach the subsequent stages of proving eligibility, such as the nexus stage.  Perhaps the above applicants’ claims would have failed even under broader PSG definitions, but policy-wise they should at least have been given an opportunity to present their arguments under more favorable conditions. The crimes committed against these women are so heinous that if American asylum law truly wishes to protect those persecuted for their membership in a particular social group, it should not let convoluted definitions distort the core underlying traits that define these groups.

After all, at least one circuit court has now agreed that Albanian women, like Cece, who fear prostitution deserve asylum. However, a narrower, more complex PSG definition in Cece’s case, much like the one she confronted in the Board’s decision, would have deprived her of the protection that she was later found to deserve. Thus where reasonable minds may support an applicant’s claim under a broad PSG definition, asylum law should encourage that definition. Law must evolve with the times. The global status of refugees is such that countless women suffer persecution, at least in part, precisely because they are women. A trend in asylum law that recognizes this inherently female tragedy and tries to better address it through broader PSG definitions would better reflect the current refugee situation.

Meanwhile, a continually complex asylum-seeking process – with its detailed list of further eligibility criteria – would ensure that only those women who truly satisfy asylum law objectives can take advantage of more simply defined PSGs. These further eligibility criteria will prevent the incoming of an intolerably large number of refugees.[62]  For example, even if the law allows for broader gender-based PSG eligibility, applicants will still have to pass the nexus requirement and prove that they have faced or fear facing persecution on account of the attributes that compose their PSG. Absence of state protection and infeasibility of internal relocation within the applicant’s home country are additional examples of criteria that an applicant’s claim will need to satisfy.  A more lenient approach at the PSG definition stage of the asylum application will not allow the applicant to avoid demonstrating that she also satisfies these other requirements.

Perhaps as courts see that such broad gender-based PSG definitions will not open the floodgates to masses of undeserving refugees spilling into the US, they will even become amenable to recognizing PSGs based on gender per se. After all, other parts of the world have found that “[w]omen in any society are a distinct and recognizable group; and their distinctive attributes and characteristics exist independently of the manner in which they are treated, either by males or by governments.”[63] It is time that American asylum law, too, recognizes that just as persecution may result from a person holding a certain political opinion or set of religious beliefs, living in some societies as a woman can also give rise to a well-founded fear of persecution.

[1] J.D., Harvard Law School, 2015.

[2] Deborah E. Anker, Law of Asylum in the United States 383 (Thomson Reuters et al. eds. (2013 ed.).

[3] INA § 101(a)(42)(A), 8 U.S.C.A. § 1101(a)(42). The other four eligible bases for persecution or a well-founded fear of persecution are race, religion, nationality, and political opinion. Id. See also Anker, supra note 1, at 46-7.

[4] Cece, 733 F.3d at 666.

[5] Id.

[6] Id.

[7] Id. at 667.

[8] Id. She suspected they were too afraid of Reqi. Id.

[9] Id.

[10] Id.

[11] Id.

[12] Id. In addition to receiving asylum status, aliens may receive “withholding of removal,” which is another form of protection from return to persecution. Anker, supra note 1, at 8. However, withholding of removal does not provide a status in the US. Id. 

[13] Before coming to the US, Cece fraudulently procured an Italian passport and applied for US asylum under the Visa Waiver Program. Cece, 733 F.3d at 667. Although Judge Easterbrook’s dissent touches on this fraudulent procurement, this case comment focuses primarily on gender-based aspects of the case and will not discuss Judge Easterbrook’s argument. Cece, 733 F.3d at 683.

[14] Id.

[15] Id.

[16] Id. at 667. A 2004 US Department Report corroborated this testimony. Id.

[17] Id.

[18] Id.  In order to establish a well-founded fear of persecution, an alien does not have to demonstrate that her State is the persecutor. It is enough to show that the State is either unwilling or unable to protect her. Because the Board determined that Cece’s PSG was not cognizable (as discussed below), it did not reach the issue of whether Albania was unwilling or unable to protect her. Id. at 675-676.

[19] Id. at 668.

[20] Id.

[21] Id. The immigration judge, however, expressed concern with the Board’s conclusions – namely that Cece’s proposed social group was defined mostly by the harm inflicted on its members and that Cece had presented insufficient evidence that internal relocation was not reasonable.[21] Id.

[22] Id.

[23] Cece, 733 F.3d at 662.

[24] 8 U.S.C. § 1101(a)(42)(A).

[25] Cece, 733 F.3d at 668 (quoting Escobar v. Holder, 657 F.3d 537, 542 (7th Cir. 2011).

[26] Cece, 733 F.3d at 668; 8 C.F.R. § 1208.13(b)(1).

[27] Cece, 733 F.3d at 668.

[28] Id. (quoting Chevron, USA., Inc. v. Natural Resources Def. Council Inc., 467 U.S. 837, 842-3 (1984) (“If Congress has directly spoken to the precise question at issue, then a court must follow that clear guidance . . . If, however, the statute is silent or ambiguous, the court must defer to authoritative agency interpretations of the law)”.

[29] Cece, 733 F.3d at 669.

[30] Id.

[31] Id. This finding by the Board led it to hold that Cece’s PSG was not cognizable. Id.

[32] Id.

[33] Id. at 672.

[34] Id. at 672.

[35] Id. at 676.

[36] Id. at 669.

[37] Id. at 676.

[38] Id. at 677.

[39] Id.

[40] The court also overruled the Board’s determination that there was insufficient evidence to show that internal relocation was not a feasible means for Cece to avoid persecution. Id. Because this is not an issue raised by the PSG considerations that are the focus of this case comment, I will not address the internal relocation question in depth. Suffice it to say that the court remanded the internal issue relocation back to the Board to consider that Cece had only felt safe while living with her sister and that Albania was a small country for someone who is well known to Reqi to hide. Id. at 678.

[41] See id. at 680. Judge Manion also dissented, arguing that living alone is not an immutable characteristic, “young” is too subjective an adjective to define an element of a cognizable social group, that Cece suffered from general lawlessness in Albania rather than targeted persecution, and that there was sufficient evidence to show that she could have internally relocated. See id. at 683-8. Again, because this was not a gender-based argument, this case comment does not address this contention in depth.

[42] ANKER, supra note 1, at 410.

[43] See generally Anker, supra note 1, at 387-423.

[44] Anker, supra note 1, at 405.

[45] United Nations High Commissioner for Refugees, Guidelines on International Protection: The Application of Article 1A(2) of the 1951 Convention and/or 1967 Protocol Relating to the Status of Refugees to Victims of Trafficking and Persons at Risk of Being Trafficked at 2(HCR/GIP/06/07) (Apr. 7, 2006) available at http://www.unhcr.org/443b62b2.html.

[46] Anker, supra note 1, at 423.

[47] 19 I. & N. Dec. 211, 233–34 (1985).

[48] 19 I. & N. Dec. 211, 233 (1985). (See also Mohammed v. Gonzalez, 400 F.3d 785, 797 (9th Cir. 2005) and Fatin v. I.N.S., 12 F.3d 1233 (3d Cir. 1993)).

[49] Cece, 733 F.3d at 669-70.

[50] Anker, supra note 1, at 387 and 405.

[51] Id.

[52] Anker, supra note 1, at 410.

[53] Id.

[54] Cece, F.3d at 672.

[55] Id.

[56] Cece, 733 F.3d at 681.

[57] Id. at 672.

[58] 422 F.3d 1187, 1199-1200 (10th Cir. 2005) (alluding to the nexus requirement).

[59] Anker, supra note 1, at 409.

[60] Id. at 408-9.  Lushaj v. Holder, 380 F. Appx. 41, 43 (2d Cir. 2010).  Kante v. Holder, 634 F.3d 321, 326-7 (6th Cir. 2011).

[61] And what constitutes “good” may certainly benefit from discussion among leading legal minds in American asylum law.

[62] Id. at 409.

[63] Id. at 406.  Re MN, Refugee Appeal No. 2039/93 (N.Z. R.S.A.A. 1996). (See also statements by the USCIS that “[w]omen hold a significantly different position in many societies than men. . . . Women may suffer harm solely because of their gender.” Anker, supra note 1, at 407).

Women work at a garment factory in Savar

Gender and Garment Work: The Rana Plaza Disaster

Alysa Harder*

When Rana Plaza collapsed outside Dhaka on April 24 of this year, the building didn't discriminate; it simply crumbled, burying everyone inside and killing 1,129 in the world's deadliest industrial accident since Bhopal.

But 80% of Bangladesh's garment workers are women, and according to some estimates women made up over 80% of those killed or injured in the collapse that day.[1]

They are the most recent high-profile casualties of a race to the bottom in a ready-made garment industry which has long profited from women's disadvantage. In Bangladesh, a surplus of impoverished, illiterate, socially and economically oppressed women desperate for work fuels the country's export economy. Most of the women in the garment industry are rural migrants, and for most it’s their first job.[2] Factory owners have deliberately feminized the industry, preferring to hire women for their very low wage expectations, their willingness to work longer hours than their male counterparts, and the ease of dismissing them.[3]

The day before the collapse, workers were sent home as inspectors examined the cracks that had begun to appear in the building’s walls. The next day, they were told by management they had to come to work or forfeit a month’s wages.[4] Lacking the capability to resist management’s demands, they came. 

The precariousness of poor Bangladeshi women’s social and economic position is inextricably intertwined with the root causes of the Rana Plaza tragedy. Yet gender has not been a focus of the various efforts that governments, NGOs, and mostly Western brands have made over the past few months to address weak governance in Bangladesh’s garment sector.

These players have, however, highlighted the opportunities that the garment industry has afforded the country’s women.  US retailers who have signed on to the Alliance for Bangladesh Worker Safety, which calls for independent inspections of all factories used by member retailers, as well as “safety and empowerment” training and a grievance hotline for workers,[5] acknowledge that “the Bangladesh garment industry (which employs millions of workers, roughly 80 percent of whom are women) provides invaluable economic opportunity in the country.”[6]

In their joint statement regarding the “Sustainability Compact for continuous improvements in labour rights and factory safety in the Ready Made Garment and knitwear industry,” under which the Government of Bangladesh commits to adopt amendments to Bangladesh’s labor law to improve freedom of expression and collective bargaining rights, to add hundreds of safety inspectors, and to educate and train workers on their rights as well as safety and health issues, representatives from the Government of Bangladesh and the European Union remark on “the positive impact of the RMG and knitwear sector in Bangladesh on the … empowerment of women.”[7]

At the Senate Foreign Relations Committee hearing on labor issues in Bangladesh that I attended in early June, where witnesses discussed suspending Bangladeshi trade preferences under the Generalized System of Preferences[8], Robert Blake, Assistant Secretary of State for South and Central Asian Affairs, stated in his testimony: “Bangladesh’s development gains have come in part because of the growth of its ready-made garment sector…a sector that employs between two and three million Bangladeshi women, helping to lift them out of poverty and empowering them socially and economically.”[9]

It’s true—working in garment factories gives many women regular income and a measure of personal autonomy and leverage within their households that agricultural or domestic work has rarely afforded them. But until now, abysmal working conditions have kept Bangladeshi women from benefiting from globalization in a paradigm-shifting or even sustainable way. When the garment industry’s most visible stakeholders emphasize how the industry benefits women, while neglecting to acknowledge the fact that their exclusion from the wider labor market contributes to the perpetuation of the types of conditions that lead to Rana Plaza, they obscure a critical part of the story. 

Private compliance and capacity-building initiatives like the Alliance for Bangladesh Worker Safety have historically had very limited impact on labor standards worldwide;[10] companies have got to get the story straight if their efforts are to have a chance of effecting meaningful change.  And while the labor law amendments the Bangladeshi government has begun to implement, under pressure from the US and EU, may prevent another catastrophe on the scale of Rana Plaza, sustained progress will depend on coordinated initiatives that comprehend and account for the role that gender plays in Bangladesh’s ready made garment industry. 


* JD Candidate, 2014.



[1] Suvendrini Kakuchi, Female Garment Workers Bear Brunt of Tragedy, Inter Press Service News Agency (May 10, 2013) http://www.ipsnews.net/2013/05/female-garment-workers-bear-brunt-of-tragedy/. Exact figures on the gender breakdown have not been reported.


[2] Naila Kabeer and Simeen Mahmud, Rags, Riches and Women Workers: Export-oriented Garment Manufacturing in Bangladesh, in Chains of Fortune: Linking Women Producers and Workers with Global Markets 148 (Marilyn Carr, ed. 2004). 


[3] Shamsul Khan, Trade unions, gender issues and the ready-made garment industry of Bangladesh, in Women’s Employment in the Textile Manufacturing Sectors of Bangladesh and Morocco 180 (Carol Miller and Jessica Vivian, eds. 2002).


[4] Michelle Chen, Factory Collapse in Bangladesh Shows Cracks in the System, Huffington Post (Apr. 28, 2013, 11:08 A.M.) http://www.huffingtonpost.com/michelle-chen/factory-collapse-bangladesh_b_3173627.html


[5] Alliance for Bangladesh Worker Safety, http://www.bangladeshworkersafety.org, last visited Sep. 9, 2013.


[6] Statement of Purpose by Leaders of the Alliance for Bangladesh Worker Safety, http://www.bangladeshworkersafety.org/wp-content/uploads/CEO-Letter-7.9-CR-11pm.pdf, last visited Sep. 9, 2013.


[7] Joint Statement, European Commission, http://trade.ec.europa.eu/doclib/docs/2013/july/tradoc_151601.pdf (last visited Sep. 9 2013).


[8]“The U.S. Generalized System of Preferences (GSP) is a program designed to promote economic growth in the developing world by providing preferential duty-free entry for up to 5,000 products when imported from one of 127 designated beneficiary countries and territories.” Office of the United States Trade Representative, Generalized System of Preferences, Office of the United States Trade Representative, http://www.ustr.gov/trade-topics/trade-development/preference-programs/generalized-system-preference-gsp (last visited Sep. 9, 2013).


[9] Robert Blake, Statement to the Senate Foreign Relations Committee, Labor Issues in Bangladesh June 6, 2013 http://www.foreign.senate.gov/imo/media/doc/Blake_Testimony.pdf 


[10] See generally Richard M. Locke, The Promise and Limits of Private Power: Promoting Labor Standards in a Global Economy, Cambridge University Press 2013.  The Accord on Fire and Building Safety in Bangladesh, another agreement that many European brands have signed on to, may prove more successful than most, due to its legally binding nature and union involvement.  


Screen shot 2012-11-13 at 11.58.20 AM

Saris, Courtrooms and Prison: Reinventing Indian Womanhood

Surina Diddi, Wellesley College '12, Madeleine Albright Fellow '11, B.A. Economics

The struggle of man against power is the struggle of memory against forgetting. ― Milan Kundera 

I felt so moved by Professor Montoya’s article Mascaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse,[1] because her words captured so much of what my grandmother experienced, though they lived worlds apart. My grandmother, Sheila Didi, was nominated for the Nobel Peace Prize in 2005. Born and raised in segregated Kenya, she was one of the first Indian women to graduate with a law degree from England. As a young woman, she helped defend the infamous Mau-Mau trials in Kenya. In the wake of India’s independence from British rule, my grandmother moved to India, where she spent her life serving the poor as a human rights lawyer and a grass-roots activist. Like Professor Montoya, my grandmother adopted a variety of social and political masks throughout her life to be accepted by her peers. However, usually no mask was sufficient. My grandmother often radically defied societal norms, pioneering a new identity, like so many progressive minorities in her generation. The stories of countless minorities such as my grandmother remain untold and unrecorded.

My grandmother was seen as an outsider for much of her life—as an Indian girl raised in segregated Kenya; as one of the first minority law students in England; as a young Indian Kenyan woman in the Kenyan Independence struggle; as a highly-educated Hindu Brahmin woman involved in grass-roots activism in provincial India; as a politically active wife and mother in Indian leftist circles; and as one of the only female lawyers in the Indian High Court. She masked various aspects of her identity to be accepted by the mainstream community as a student in Kenya and England as well as a young activist in the Kenyan Independence struggle. When she began practicing law and became politically active in India, male lawyers and grass-root activists were at first very suspicious and unwelcoming. However, her elite legal education made her an indispensable asset, often giving her the license to defy gender and cultural norms. As my grandmother gained prominence in legal and political circles, she didn’t need to mask her identity as much. People began accepting her for her true self and saw her as a role model. However, her harshest critics reprimanded her for letting her family life suffer as a result of her legal and political activism.

I was assigned to read Professor Montoya’s article as a junior at Wellesley College.  This article, as well as the support from my advisors, Dr. Rangita de Silva de Alwis and Professor Christopher Candland, inspired me to write a hundred and ten page memoir about my grandmother, which remains unpublished in my personal archive. I wrote this memoir not only to honor my grandmother’s legacy, but to examine the forces that have shaped and defined me. I was born in India and raised in the suburbs of New Jersey. I feel like I have always lived on the fringe of the “real” America and never been fully accepted by the mainstream. In the United States, I have a shallow identity. I am an Indian-American girl, whose family immigrated to the United States in the late nineties. However, in India and Kenya, I am known by a myriad of familial, social and political relationships dating over a century. Learning about my grandmother’s life has been extremely empowering. Whenever I find myself feeling miserable or wallowing in self-pity, simply remembering my grandmother’s struggles and triumphs, gives me immense strength to move forward.

I first visited my grandmother’s childhood home in Kenya when I was sixteen. My great-grandfather was one of 32,000 young Indian men, recruited by the British Empire to build the Kenyan-Ugandan Railway at the turn of the 20st century. My grandmother, who was born in Nairobi in 1928, always spoke of her childhood in Kenya with nostalgia twinkling from her eyes. Her childhood home stood along an unpaved road bustling with mutatto vans, aggressive street vendors, cars and bicycles. The outer rooms had been converted into a local bar with red, plastic chairs, while the interior rooms were a small slaughterhouse. The stench of dead animals was unbearable. It was hard to imagine that this house, which consisted of five rooms and a veranda, was once shared by twenty-two people – my great-grandparents, five siblings and the families of three of my grandmother’s uncles.

In high school, my grandmother realized that as an Indian girl in segregated Kenya, she was severely disadvantaged.[2] She went to the Arya Girls’ school, which was run by European nuns. Kenya was a segregated, rogue state, where Indians and Africans often faced brutal forms of racism. She worked hard to be an excellent student. However, she quickly realized regardless of how hard she worked, as an Indian girl, her teachers would always deem her inferior to the white students. “We would sometimes encounter our teachers on segregated buses and on the streets outside of school,” my grandmother vividly recalled, “but they refused to acknowledge us! Such racial arrogance was dehumanizing!” History was taught from a British-centric perspective. Her history teacher, a short, fat Irish woman often told them, “Girls, you should be grateful to Henry the VIII. Why? Had he not created the British navy, India would not have been discovered!” These teachers also often openly insulted famous Indian revolutionaries such as Subhash Chandra Bose. This was the ultimate insult for my grandmother and her classmates, who saw these leaders as superheroes. Soon they began revolting by organizing protests in school.

Her social activism helped give her a license to defy gender norms from an early age. While many Indian girls remained in purdah,[3] wearing veils and spending the majority of their lives within high-walled enclosures at home, my grandmother was permitted to stay late at school and listen to lectures by the leaders of the independence struggle. Her mother, Shanti Devi Sharma, led Indian women to organize fundraisers, food drives, and protests for the Indian Independence movement.[4] She was a leader in the Arya Samaj temple[5] in Nairobi, which would regularly receive letters from Mahatma Gandhi.[6] Like Indian students across Kenya and South Africa, my grandmother and her classmates performed important milestones of the Indian freedom struggle in front of large audiences. These performances were a way of educating youth and their families about the struggle. At one such performance, my grandmother recounted with great excitement that “people came in the thousands to see us! When the performance ended, there was a standing ovation, and the audience began chanting Inquilab Zindabad! [Long live the revolution!] Jai Hind! [Long Live India!]. Our parents then realized that we could achieve something great for India!” her parents then decided to send her to the best possible education in England.  My grandmother soon set sail to attain a law degree in England in 1947, a year when over ninety-two percent of Indian women were illiterate.[7]

In England, my grandmother tried her best to assimilate into British society, even at the expense of abandoning certain Indian traditions. According to Professor Montoya, this is common among minorities trying to succeed.[8] My grandmother was one of the first two Indian women to attend Cardiff University. She wore Indian saris every day—sticking out like a sore thumb on campus. Her mother had hand-woven many of these saris, in allegiance with Mahatma Gandhi’s mandate to protest British fabric. My grandmother’s attire proclaimed her politics, just like Professor Montoya’s clothing at Harvard Law School. It made her acutely aware of how Indians were perceived in England. Kapila Hingorani, the other Indian student at Cardiff at the time told me that Indians and Africans were often perceived as savages by most British. British students would often ask them if they had swung from branches like monkeys to get to school in Kenya and India. Due to stereotype threat, just like Professor Montoya, my grandmother made the extra effort to seem clean, polished and well bred. Every day she carefully and tightly braided her long black hair and pressed her saris until no wrinkle was in sight.[9] Like many Indian students in England, she refrained from eating with her hands and learned the dining etiquette for traditional European five-course meals. She also tried to learn ballroom dancing, which was perhaps most shocking of all: “I remember after the College balls, outside our all-girls dormitory, there would be a line of girls and boys hugging and kissing. We walked past quickly, but sometimes we couldn’t help but catch a glance. We had never seen anything like it before. They didn’t feel at all embarrassed” My grandmother even went as far as legally changing her Indian name “Susheila,”[10] to the British name “Sheila.” Despite her efforts to fit in, like Professor Montoya and other minorities who were the first to enroll in western universities, my grandmother felt isolated. In the words of Professor Montoya, her private self was suffocating.[11]

Associating with international students offered her a new window for acceptance and empowerment. She spent all her vacations at an international youth hostel in London, where she became friends with many students from India and other European colonies. As youth from colonies rampant with poverty and racism, these students shared a deep camaraderie. Like the majority of students in England from colonial states, they became attracted to socialism.[12] World War II had recently ended and India as well as other colonies had just won their independence from colonial rule. As the educated elite of these developing nations, they were brimming with idealism and felt a heady responsibility for leading social reform. Many of the students my grandmother met later became famous pioneers of the leftist movements in their native homelands.

Quickly my grandmother plunged deep into the international Marxist movement. Under the guidance of the renowned Fabian Society in London, my grandmother began intensely studying socialist texts, which encouraged women and men alike to spearhead the transition to a socialist world. Just as Professor Montoya was empowered by her activism in the Chicano student movement, similarly my grandmother’s new Marxist identity gave her an “ideological” mask. Through this prism she experienced many new worlds, traveling to Budapest, Warsaw and Berlin for international socialist youth festivals that attracted tens of thousands of young people from around the world. My grandmother loved to talk about these youth festivals ad nauseam.

When we went to Budapest, fifty of us traveled from London in a truck! We sang songs, played games, cooked food, and drank alcohol along the way. We would spend the night at youth hostels in various countries. We would even occasionally sleep in barns! In Venice, we slept under trees near the Lagoon. In Budapest, we were greeted by a sea of Red flags, as well as portraits of famous Communist leaders worldwide such as Lenin, Marx, Stalin and Mao Zedong. There were so many events on all sorts of political and cultural issues from around the world. I remember attending ballets about evil landlords and harvest dances performed by Hungarian peasants.

My grandmother soon fell in love with Indian boys, who would serenade her with Tagore love songs and talk dreamily about the coming of the socialist revolution.[13] They were leaders in the London Majlis, an extension of the All India Students Federation, which strove to bring socialism to India.[14] She soon rose to become the General Secretary, making her acutely aware of injustice in India and beyond. She also worked closely with the World Peace Council, participating in large protests against the atomic bomb in Hiroshima and Nagasaki.[15]

When my grandmother returned to Kenya in 1954, after finishing several years of law school, she felt doubly estranged not only from her ancestral roots as an Indian Kenyan, but also from her law classes in England. Professor Montoya wrote that this is common among minorities who were the first to attain higher education.[16] Equipped with legal knowledge and a more global perspective, my grandmother was awestruck by the poverty and discrimination. Learning about the intricacies and minutia of English law seemed futile, when back home in Kenya, there was virtually no rule of law. Even decades later, when she recalled those days, you could hear the fury in her voice: “The British had a double standard! They had fought against fascism, Aryan superiority and what not in Europe, but they treated us Indians and Kenyans like slaves!” she said. She explained the curfew system in place under the reign of Kenyan Martial Law:

Africans could only roam the streets until five pm. Sometimes, if we missed the curfew we would actually hide the Africans in the boots of cars. Can you believe it? The British would often just lay down barbed wire around an area and demand Africans to show their Kipande as they say in Swahili, or their identity card. All those without Kipande were immediately sent to jail. I will never forget, one time I was standing outside my father’s shop, and I saw an old African man with a wooden basket buying vegetables for his white master. The police came and demanded to see his Kipande. The old man began apologizing profusely because he didn’t have this identification. But the police gave him several lashes and threw him into their van! It shook me. I saw the plight of this old man. Tears were just rolling down my cheeks!

My grandmother joined the Kenyan Independence struggle. This was the first time she immersed herself in Black Kenya. After making Black friends in England, in Kenya, she was eager to transcend racial boundaries and “know Africans as persons.” Initially she did not tell her family that she was meeting them. Interactions among the Indians and Africans were often frowned upon. Like many Indian families, her servants had been her only contact with Black Kenya. As a young Indian Kenyan activist, not all of the African activists were friendly and welcoming to her. “I was totally shocked and ashamed when I found out that there were Indians who were acting as home guards, and helping the British suppress the Africans.”[17]

Her English legal training made her immensely valuable to Kenyan activists. She began working for prominent Indian lawyers in the East African Indian National Congress, who were fighting for those in the infamous Mau Mau struggle. [18] She worked for Fitz D’Souza and Achroo Kapila, who defended Jomo Kenyatta, a revolutionary who later became Kenya’s first Prime Minister, and countless others in the Mau Mau trials.[19] “Under Martial law, the death sentence was often pronounced on flimsy evidence after holding a sham trial. It was common to see young African women crying outside the courtrooms because their husbands or some other relative was pronounced to be hanged,” my grandmother recalled. When she returned to England, she worked for Peter Mbiyu Koinange, who was defending thousands of poor Kenyans whose land had been evicted by the British.  He later became the Vice President of Kenya.

Upon graduating from law school in 1956, my grandmother left the splendors of London and moved to India to a tiny, industrial town named Ludhiana to serve the poor. She was perceived as an exotic outsider due to her elite education in England.  Grass-roots activists were often deeply suspicious of her. Her friend told me:

Most activists were men from the working class and lower castes. It was extremely rare to see a young Hindu Brahmin woman, that too a law graduate from England, with a keen desire to work in the slums, villages and labor colonies. It was a strange sight—Sheila would often wear her fur coat to outreach sessions in villagers and sometimes go door to door to raise awareness for various causes.

There were also very few women in the field. My grandmother also organized countless protests and rallies where she and the other women would sing songs to protest. Perhaps, as women in the 1950s, singing was considered a more acceptable way of unmasking their radical intentions and communicating them to the masses.[20] With much time and effort, my grandmother gained acceptance, running for State Legislature in 1962 and later for Parliament in 1977 on a leftist ticket.[21] During Parliamentary elections, my grandmother recalled:

People came in thousands to see us in the final debate! This was the first time I had addressed so many people from all walks of life. In the beginning, thousands of people began chanting my name along with my party’s name. I felt so elated. I thought, are all these people really chanting my name— Sheila Didi? Who is this Sheila Didi? Do I know her?

As one of the first three women lawyers out of two hundred men in the Punjab and Haryana High Court, my grandmother staunchly defied traditional gender norms and faced many hardships as a woman. “Often times, male clients would not take me seriously. They would smirk— how could a woman be powerful and convincing in court? I often had to work harder than the men to prove that I was an excellent lawyer.” Though men hesitated to accept her, she was extremely valuable to the courts. After independence, the Indian courts continued to utilize the English criminal code. With a law degree from England, my grandmother was one of the privileged few who could interpret British law. And yet, after my grandmother passed away, I discovered that some senior advocates would ask her for sexual favors long after she was married with three children. She never told me, perhaps because she wanted to shield me from this ugliness.

My grandmother handled human rights cases involving worker rights, sexual harassment, corruption, domestic violence and dowry. She often defended the poor, who had little means to pay her. As a prominent member of well-established grass-roots women’s organizations—the National Federation of Indian Women and the Punjab Istri Saba, my grandmother was acutely connected to problems at the slum and village level.  Through these organizations, she provided pro bono legal counsel to women on a host of issues every week. These women often did not have the knowledge, resources or familial support to take legal action. In 1962, with the help of the National Federation of Indian Women, she fought one of the most prominent dowry cases,[22] which went up till the Supreme Court. A poor woman named Kamla Dhamda was murdered by her in-laws, because they claimed her family had given insufficient dowry.  My grandmother recalled “her father would come and visit me daily at our house.” My grandmother won the case, as Dhamda’s in-laws were sentenced to life in prison.[23]

During the brutal Khalistan militancy[24] in the 1980s, my grandmother witnessed many atrocities while traveling across Punjab to the hotbeds of terrorist activities with the Punjab Istri Saba. At times there were over seventy cases in my grandmother’s files in just one month. In order to maintain order, the state became draconian. My grandmother recounted a chilling example, where two young men, who were accused of being part of a criminal tribe, were imprisoned without a trial. These men were innocent and had no idea why they were in prison. Their sixteen-year old wives, Phoolmati and Santra, stood in front of the prison for days. The girls were sexually harassed by the police. One of them was even hung naked from the ceiling of a prison ward for days. Such cases were unfortunately common during this era of utter lawlessness. The case continued for months before the police officers were fortunately arrested and convicted with seven years in prison.

On a personal front, my grandmother was hardly the stereotypical Hindu Brahmin wife and mother.[25] Her roles as a human rights lawyer, a political activist and mother of three often combatted with each other. Her family life suffered because she focused so intensely on her social activism. Her harshest critics have chastised her for spending limited time at home with her three children and for not knowing how to cook as an Indian woman. She did not marry until she was twenty-seven, which was considered dinosaur age for Indian brides in the 1950s. When her family urged her to get married, she declared that she would only marry a Marxist, who would be permissive of her social activism. She married my grandfather, Madan lal Didi, a trade-union leader. Like most Indian public servants, he often received a meager salary. Often times, my grandmother became the sole bread-winner. The day after her wedding, my grandmother began canvassing for my grandfather’s political campaign in the sweepers’ slums. This was extremely taboo for a bride, as Brahmins deeply pride themselves with their cleanliness. After marriage, often times, my grandmother’s political protests would become violent, concluding in her arrest. My grandmother was once imprisoned for about a month shortly after giving birth to my father. The warden allowed my father to spend a few nights with her in prison. There was also often no division between the personal and political in the house. Many times the villagers she was defending in court would visit the city for their court cases. They were often too poor to afford housing so my grandmother would house them in her living room. There were over seven people sharing a modest apartment. Family members sometimes complained that the house was a guesthouse for anyone with political or charitable ties.

After writing much of my grandmother’s narrative, what was equally eye-opening was the way various people and groups reacted to my writing. When I began writing this memoir, little did I know I would be challenging a variety of power structures. Though my grandmother was one of the 1000 women nominated for the Nobel Peace Prize in 2005,[26] she did not think she was extraordinary by any means. When I told her I wanted to write a book about her life, she and many family members were appalled. Could this be a worthy pursuit as an Economics major at Wellesley College? In her old age, many knew little about her accomplishments. They simply saw her as just another little old lady, who lived in a second-floor apartment on Ring Road in New Delhi, India. As an 83 year old, she was frail— wearing a neck and hip brace and limping with a walking stick.

Some felt threatened by my writing, which recorded my grandmother’s accomplishments. Some have consistently dismissed her achievements. Perhaps this is a way of justifying their lackluster lives. One person told me “child, you are forgetting that your grandmother was a woman. As a woman you are responsible for taking care of the household, which she did not do well.” Many also felt threatened by me. As I interviewed family and my grandmother’s colleagues for this project, I was also no longer a sweet, young girl who sang Indian Classical music melodiously, but a foreign American judging them through a starkly different perspective. I constantly questioned the validity of my perspective due to my age, gender and Indian-American identity.

Perhaps this is a testament to Professor Montoya’s words about how the stories of outsiders, of minorities and of women are often silenced. Speaking out and discovering the validity of your perspective requires a great degree of confidence, as Professor Montoya says. As I began to research further, I realized that what I was experiencing was a systemic problem. Though much has been written about elite Indian political families such as the Nehru-Gandhi family, little has been written about reform at the grass-roots level, and particularly about the women in this movement. My grandmother’s stories and those of thousands of women in the Indian women’s movement remain largely untold and unrecorded. Perhaps for this reason, many of my grandmother’s colleagues felt their lives were insignificant and unworthy of publication; they didn’t seem to realize how their public contributions were important forces in broader reform.

The winners of history often write history books. Personal narratives, as Professor Montoya writes, can often challenge the dominant power structure. Individual stories remind us that our generalizations about places, movements, and ideology erase diversity and difference, which is why recording personal stories is crucial on a personal and political level. The more I poured hours into researching my grandmother’s life, the more empowered I became. Sometimes a sentence embodying her idealism, her sacrifice, her courage struck me and my eyes brimmed with tears. I hope my writing inspires others to write their personal narratives.


The above article is a revised excerpt of my 110 page memoir about my grandmother, which remains unpublished and part of my personal archive. My grandmother’s quotes in my article stem from this work. I conducted my research by interviewing her over Skype and many scholars in the US over several months. I also spent a month interviewing prominent scholars, lawyers and social activists in India, with the help of a grant from the Wellesley College Dean’s Office.

Over the last two years, so many people have helped me immensely. I want to thank Professor Margaret Montoya for recognizing my work as worthy of publication. I am also eternally grateful first and foremost to Dr. Rangita de Silva de Alwis and Professor Christopher Candland for their inspiration and support. I also would have never read Professor Montoya’s article if it wasn’t for Professor Tom Burke. Professor James Oles, Professor Marilyn Sides, Professor Nikhil Rao, Professor Gyan Prakash, and so many other distinguished scholars also offered me critical guidance. My family, friends and my grandmother’s colleagues offered immense support and personal insights. The following list certainly does not do justice to all those who have helped me. I have listed them alphabetically and not by any means in order of importance: Ms. Kanta Advani, Mr. Pawan K. Bansal, Ms. Rani Balbir, Mr. Bant S. Brar, Mr. Amarjit Chandan, Mr. Devi Dayal, Mr. Jogender Dayal, Mr. Rahul Diddi, Ms. Shumita Didi, Mr. Amit Ghosh, Mr. Anupam Gupta, Ms. Sumitra Gupta, Ms. Pushpa Hingorani, Ms. Khoja, Mr. Jaswinder S. Mand, Mr. Inder Mehta, Ms. Oshima Reikhy, Ms. Rita Sharma, Dr. Visho Sharma, Ms. Poonam Singh and Mr. Debi S. Tewatia.

I had many sleepless nights while writing this article. As a twenty-two year old girl in an Indian family, I was commanded to not write about many of my grandmother’s experiences— ones that could harm our family’s honor. I apologize to my family and family friends. After much thought, I decided to breach the silence and write an honest account about my grandmother’s life, one voicing her struggles and triumphs.



Photo outside of my grandmother’s school in Nairobi, Kenya in the 1930s. My grandmother is in the middle, holding the two babies.


My grandmother at the age of 18 in Kenya (on the right) with a friend, Sheel Chabra

  My grandmother in the top row in the middle. This photo was taken on a Polish ship called the Batory, while going to the Berlin Socialist Youth Festival in 1953.


My grandmother on the left sitting by student tents at an international socialist youth festival in Budapest in 1953.


My grandmother on the left performing an Indian dance for a group of European students at an international socialist youth festival

 My grandmother in Nairobi, Kenya in  1955. Peter Mbiyu Koinange, pictured next to her, later began Vice President of Kenya


My grandparents in the late fifties, after their marriage, at Okhla Barrage by the Yamuna river  in Delhi.  The photo was taken by poet Krishan Adeeb.


My grandparents’ wedding in 1956


[1] Margaret E. Montoya, Mascaras, Trenzas, y Greñas: Un/Masking the Self While Un/Braiding Latina Stories and Legal Discourse, 17 Harv. Women's L.J. 185, 202 (1994).

[2] Prior to high school, she attended primary and middle school in an Indian gurukul, which were run by the Arya Samaj, a reformist sect of Hindus who were leaders in the Indian Independence movement. Instead of learning nursery rhymes, she learned revolutionary slogans.  “Jail chaloege? [Will you go to jail?] hahn bhai hahn! [Yes oh yes!]” “Mil jayegi, [What will you get?] Kya bhaee Kya? [What oh what?] Azadi! [Freedom!] Wah bhaee wah! [Wonderful oh wonderful!]”

[3] Purdah Definition, Encyclopædia Britanica, http://www.britannica.com/EBchecked/topic/483829/purdah (last visited Mar. 6, 2013). During the Independence movement, countless Indian women were encouraged to leave their traditional domestic roles and participate in the struggle by adopting public roles for the first time.

[4] In the sixties, her mother helped to mobilize Indian women for Kenya’s independence struggle. For her efforts, President Arap Moi gave her the Freedom Fighter award— the highest national honor for the independence struggle.

[5] Her father was one of the cofounders of the Arya Samaj temple in Nairobi.

[6] Bipan Chandra, India's Struggle for Independence 169–175 (1989).

[7] G. Balatchandirane, Gender Discrimination in Education and Economic Development: A Study of Asia 20 (Mar. 2007), available at http://www.ide.go.jp/English/Publish/Download/Vrf/pdf/426.pdf.

[8] Montoya, supra note 1.

[9] She followed the advice of Jawaharlal Nehru, the first Prime Minister of India, who advised Indians to remain at their best for their actions will help shape British perception of India. She heard him speak several times to a small group of students in London and was elated to shake his hand.

[10] Susheila means beautiful girl in Sanskrit.

[11] Montoya, supra note 1, at 14.

[12] Nicholas Owen, The British Left and India: Metropolitan Anti-Imperialism 1885-1947 (2007).

[13] These boys later became leaders in the leftist movement. Mr. M. B. Naidoo became a prominent human rights lawyer in South Africa. Twenty years after college, when my grandmother visited Zimbabwe, she discovered that he had become famous. “In the early sixties, he was jailed along with sixty other people on Robben Island for his human rights activism,” my grandmother said. The other boy, Prabhov Banerjee became active in the Communist movement in Bengal.

[14] The All India Students Federation also worked closely with the Independence for India League, which was founded in 1928 by Jawaharlal Nehru and Subhas Chandra Bose. (Chandra 298)

[15] My grandmother collected signatures for a peace petition, which had almost three million signatures worldwide. This included the entire adult population of the Soviet Union as well as celebrities such as Duke Ellington, Pablo Nerudo and Pablo Picasso. (www.wpc-in.org/informationletter)

[16] Montoya, supra note 1, at 6.

[17] My grandmother admitted that it was sometimes necessary for Indians to use violence against the Africans “there was anarchy in many areas. Africans were killing in a brutal manner.”

[18] Loomba, Ania. The Crooked Line: Memory, Communism and Feminism in India. Forthcoming book. “In 1952 the Mau Mau began advocating violence against the colonial government and white settlers. Kenyatta did not advocate violence but the colonial authorities arrested him and five other KAU leaders in October 1952 for allegedly being part of Mau Mau.”

[19] My grandmother translated desperate letters from the Mau Mau prisoners from Swahili to English. The British had often evicted their land and imprisoned them. They would plea to the Indian lawyers to defend them in court.

[20] Ania Loomba, The Crooked Line: Memory, Communism and Feminism in India 29–30 (forthcoming) (on file with author).

[21] When she ran for Parliament, one of her opponents was Krishen Kant, who later became the Vice President of India.

[22] In 1961, Prime Minister Jawaharlal Nehru enacted the Dowry Prohibition Act. However, dowry-harassment persisted throughout out the country. See Mohammad Umar, Bride Burning: A Socio Legal Study 15 (1998). Until 1978, dowry murders were commonly reported as suicides due to causes unrelated to dowry-harassment. These ‘suicides’ were deemed private affairs and rarely investigated by the state. Radha Kuhmar, The History of Doing, An Illustrated Account of Movements for Women's Rights and Feminism in India, 1800-1990 119 (1993).

[23] “Kamla Dhanda’s clothes were shown in the court as evidence of the murder. When the clothes were shown in court, the girl’s father fainted, my grandmother said.  Concurrently, as one of the leaders of the National Federation of Indian Women, she organized a demonstration to raise awareness for dowry abuse and over 6,000 women attended.

[24] From approximately 1980 to 1992, the Indian state of Punjab was a hotbed of separatist terrorism. About 25,000 people were massacred in the name of establishing a Sikh state of Khalistan, independent from Hindu-majority India. See Virginia Van Dyke, The Khalistan Movement in Punjab, India, and the Post-Militancy Era: Structural Change and New Political Compulsions, 49:6 Asian Surv. 975 (Nov/Dec 2009), available at http://www.jstor.org/stable/10.1525/as.2009.49.6.975. Among those killed by the militants was my aunt’s husband or my grandmother’s son-in-law, Sumeet Singh. He was the editor of Preetlahri magazine, one of the oldest, most renown Punjabi publications. Indira Gandhi, the Prime Minister at the time, offered her condolences to our family in person and the incident received national coverage.

[25] Brahmins are the highest castes in the Indian caste system.

[26] She was nominated as part of the “1000 women for Nobel Peace Prize 2005” initiative, which sought to recognize 1000 women fighting for peace and justice at the grass-roots level around the world. See PeaceWomen Across the Globe, http://www.1000peacewomen.org/eng/aktuell.php (last visited Mar. 24, 2013).


No End in Sight

By Stephanie M. Berger

There is no dispute that human trafficking is a pervasive problem.  The International Labor Organization and the United States State Department estimate that there are more than 12 million people in “forced labor and sexual servitude” worldwide.  The State Department estimates that between 14,500 and 17,500 people are trafficked into the United States annually.  Sex trafficking, specifically, undoubtedly occurs in the United States — all one needs to do is read the local newspaper to find horrific accounts of women and children enslaved and abused in major cities across the country.  However, there is no way to know exactly how many trafficking victims in general and sex trafficking victims specifically exist in the United States, in part due to the United States’ problematic conflation of human trafficking and prostitution.  This conflation has enshrined the ideals of abolitionist feminists, who believe that prostitution is inherently coercive and abusive, and has refused to acknowledge the pro-work position that views prostitution on a spectrum including both forced and voluntary sex work.  Abolitionist ideals have most recently taken hold in End Demand efforts, which focus on criminalizing, punishing, and shaming men who buy sex as purported solutions to both prostitution and human trafficking.  This Article takes a pro-work position and aims to demonstrate the potential harms of End Demand policies.  It also proposes more productive methods for addressing human trafficking in the United States.

[button link=”http://harvardjlg.com/wp-content/uploads/2012/10/Berger.pdf” style=”download” color=”silver”]View Full Article (PDF)[/button]


Book Review: Gender and Culture at the Limit of Rights

A student review of Gender and Culture at the Limit of Rights, edited by Dorothy Hodgson.

Philadelphia, PA.  University of Pennsylvania Press (2011). 312 pages. 

Review by: Brooke Willig*

Click here to access a PDF version of the book review.

Drawing on diverse case studies from the United States, Africa, Latin America, and Asia, Dorothy Hodgson’s anthology Gender and Culture at the Limit of Rights seeks to expose many of the assumptions and implications underlying the current clamor for “women’s rights a[s] human rights.”[1]  A critical look at how rights-based frameworks incorporate and transform local gender relations, the book frames itself around global understandings of “gender,” “culture,” and “rights.”  Despite the anthology’s perhaps overly ambitious aims, the contributors successfully prevent the work from devolving into vagueness and generalities through close readings of specific cultural moments and skillful evocations of pivotal motifs.  Each author employs a different methodology and perspective—from analysis of historical images[2] to close reading of one female politician’s radio interview[3] to recollections of personal interactions with rural Egyptians[4]—but the anthology coalesces around shared concerns for the over-valuation of human rights frameworks as a means of advancing women’s rights.  The anthology’s breadth and evenhandedness, however, force it to fall short of the promise of its introduction; though the contributors derive valuable insights from their portraits of global gender relations, they fail to synthesize these insights to draw out major themes or answer serious questions Hodgson originally sets out.  That each piece largely pursues its own agenda seems in fact to be a product of the anthology’s most coherent and emphasized theme: the primacy of expression and need for individualized discourses in gender struggles.  This commitment, both stylistic and substantive, to the “complexity of . . . subjectivit[y]”[5] may well carry important implications for the role of human rights in gender justice, but ultimately keeps the work from delivering a central or formative message on the subject.

To examine the potential and limitations of the “women's rights are human rights” strategy, the book’s contributors look specifically at the way rights-based protocols have been analyzed, deployed, and legislated to create particular visions of gender in divergent historical and geographical settings.  Hodgson constructs an ambitious framework in which to situate these examinations.  In “Part I: Images and Interventions,” she asks contributors to “examine the discursive power of certain gendered assumptions and ideologies in the formulation and implementation of human rights”[6] as they evaluate the promulgation and use of specific cultural representations of women.  “Part II: Travels and Translations” seeks to show “how the production and circulation of human rights discourses have been engaged, appropriated, challenged and reworked in different communities”[7] by compiling essays on the “vernacularization”[8] of human rights and the direct effects of human rights work on local communities.  Last, “Part III: Mobilizations and Mediations” invites the reader to compare “distinct gendered experiences, expressions, and mobilizations of rights.”[9]

The essays expose fundamental flaws in human rights interventionism with especial repercussions for women.  For example, as Pamela Scully notes, the “practice of human rights is burdened by a colonialist understanding of culture that smuggles ideas of backwardness and savagery”[10] and that “tends to register this backwardness through gender,”[11] as shown by the pivotal role that the image of the suffering African women played in motivating the first transnational humanitarianism movement.[12]  Human rights work can thus make double victims out of women: it first inspires many home cultures to objectify and regulate women, as they seek to counter its western influence by idealizing women as pure embodiments of traditional culture and “private” objects, beyond the reach of a liberal democratic movement that separates state intervention and private life.  Salma Maoulidi, for instance, shows how “any intervention involving women becomes a key concern of those in power”[13] in Zanzibar, who then “insist on a disparate treatment for women [in such forms as modesty and marriage restrictions, in order] . . . to preserve their . . . personality as a people.”[14]  Second, humanitarian intervention allows humanitarians themselves to objectify women by treating them as embodiments of a repressive culture, emblematic victims rather than self-constructed individuals who may reasonably wish to maintain “savage” cultural practices like circumcision or polygyny.[15]

The anthology exposes as a second flaw in the human rights movement its activists’ equation of development of human rights with progress for women, suggesting instead that practices deemed human rights violations by outsiders may in fact serve to empower or enable women locally.  Both Scully and Hodgson notably question the vociferous opposition to female genital cutting, positing that forbidding women to teach the custom may significantly undercut the role of female elders in African society and thereby reduce women’s overall ability to aggregate status and power. [16]  Maoulidi similarly problematizes the much-decried use of early or arranged marriages, showing how Zanzibari families defensively used such unions to forestall hostile, politically-mandated intermarriages and consequent familial ruin.[17]  The anthology also gestures at the possibility that humanitarian aid may conversely hinder gender justice.  For instance, while admitting that humanitarian intervention served to create greater space for women to develop and express their rights, Caroline Yezer highlights the significant emasculating consequences of the de-militarization of rural Peru, which, in turn, inspired widespread nostalgia and appetite for the troubling authoritarianism and traditional gendering of the pre-conflict state.[18]

More fundamentally, the contributors expose the gender bias in human rights’ structural privileging of the public over the private sphere.  As has long been documented, the success of women’s rights requires intrusion into a private sphere to which women have been subordinated. Yet current rights frameworks provide inadequate state-run mechanisms to compel private actors to enter civil society.[19]  The human rights movement’s total reliance on states to negotiate, implement, and enforce rights then poses a heightened danger for women, whose domestic isolation often forces them to face sexual violence and political inequality without legal recourse.  At the same time, the essays remind us, the human rights movement retains a necessarily transnationalist grounding, which treats the development of national laws and rights as a means to international justice rather than an end unto itself.  This approach, however, creates its own problems for women, many of whom fight for women’s rights only to reclaim national and cultural citizenship,[20] and who face additional logistical difficulties in becoming part of a transnational movement.[21]

As it teases out these tensions inherent in “women’s rights a[s] human rights,” the book finds its true strength in the construction and elaboration of subtle motifs through disparate essays.  For one, though Hodgson claims to have concentrated discussion of images in Part I, contributors throughout emphasize specific, vivid portraits of women as a critical means of both interpreting and promulgating women’s rights.  Scully opens the anthology with the most direct indictment of an image, focusing her critique of human rights on its preoccupation with the “figure of the black woman vulnerable to terrible depredations”[22] found in literature and pamphlets, a belittling portrait that Scully argues impelled the abolitionist movement and still impels modern humanitarian intervention against “African patriarchy.”[23]  Hodgson also weighs the potential against the peril inherent in the image of the African woman: she compares the Maassai Women’s Development Organization’s (“MWEDO”) valuable humanitarian efforts with that NGO’s exoticization and misperception of Maasai women, as it literally capitalizes on Maasai female appearance (“they make good photo-ops!”)[24] and fixates on representations of genital mutilation rather than less graphic, if more grave, problems like economic disparity.[25]  Even images created by women themselves in pursuit of gender justice are shown to carry mixed messages: as with Oaxacan women’s self-descriptive rallying cry of “short, fat, and brown, and the face of Oaxaca,”[26] such representations often contain a self-deprecating undertone that mitigates against their progressive purpose.  These recurrent images thus ask the reader to remain critical of even—perhaps especially—those materials meant to inspire gender advocacy and, in so doing, provide a microcosm of the book’s central critique of human rights frameworks: human rights, like the images they rely upon, may circumscribe women’s potential even as they seem to increase it through access to aid and politicization.

More centrally, the essays subtly underscore the primacy of gendered voices.  Grounding their analyses in transcripts of Kenyan women’s radio addresses,[27]  Indian street plays decrying domestic violence,[28] Egyptian campaigns to end harassment through text messages,[29] interviews with women taking over Mexican media,[30] and poetry from a male immigrant detainee, [31] the contributors demonstrate the value of human rights in literally giving voice to the repressed or underrepresented.  Indeed, the authors repeatedly reference the recent case of Jessica Gonzales, who sued the police for failing to enforce a protection order against her estranged husband as he kidnapped and murdered their three children,[32] as a hopeful symbol for the women’s human rights movement.[33]  After state officers and U.S. courts, who purport to recognize human rights, denied relief, Gonzales refused to be silenced and became the first American woman to successfully demand a direct hearing by the Inter-American Commission on Human Rights ("IACHR”).[34]

The contributors’ concern for and reliance on individual voices, however, serves equally to highlight the limitations and suppressive elements of human rights frameworks for gender justice.  For one, Robyn Rodriguez, in her discussion of male immigrant detainees, reveals human rights workers’ reliance on stock narratives emphasizing treaty violations or the individual’s economic contributions to society in crafting rights claims to appeal to public enforcers.  She contends, however, that only by allowing men to refuse these stock narratives and instead make unique, affective claims about their familial obligations and associations will they be able to rebut judicial bias and avoid the injustice of the immigration system.[35]  The human rights movement also stifles expression when NGOs claim to speak for indigenous women’s interests, thereby forcing those women to combat their false representation by both men and activists and to find voice enough to declare that “these are not our priorities.”[36] This struggle is particularly difficult when humanitarians have first provided the terms of gender justice, some of which literally cannot be translated.  Hence, the process of “vernacularization” posited by Levitt and Merry becomes essential:[37] particularly for women with less access to public speech and transnational debate, key human rights discourses must be translated and re-negotiated in local contexts, allowed to arise or adapt organically to native women’s issues rather than imposed wholesale.[38]  Indeed, this vernacularization must be so open as to recognize even the absence of speech as a part of its positive process, as Stephen’s discussions with Oaxacan women remind us that the very concept of speech itself is not gender-neutral, and that the feminization of silence remains a major obstacle in bringing women to the public sphere and women’s rights to the private.[39]  Thus, while organic and progressive speech remains their aim, activists cannot force women speak up when to do so would simply be to impose masculine standards of speech on women.  Activists must also create a visible space for the long-obscured “center-women,” who operate behind the scenes, [40] and encourage these seemingly silent women to influence or control speech, even if they cannot yet produce it.  Only by acknowledging both women’s silence and their local reinterpretations of human rights discourses as valuable “other kinds of leadership,”[41] the book suggests, can human rights workers fully incorporate and promote native women’s interests.

If the book reaches this key analysis through motifs and examples, however, it shows serious fissures in its attempt to directly engage the major terms of debate.  First and foremost, the anthology fails to live up to its claim to truly examine gender rather than women.  LGBT issues pop up only cursorily, with no essay focusing on the framing of sexual orientation through human rights discourses.[42]  Similarly, though Hodgson’s introduction avers that one must understand “the meanings and practices of being a ‘man”” in order to understand those of women,[43] only two essays directly confront the relationship between masculinity and human rights, and even these essays allow their claims about the emasculating effects of humanitarianism[44] or the stigmatization of male homosociality in human rights litigation[45] to go largely undeveloped.  Moreover, though almost every essay concurs that women are used globally to (literally) embody local culture,[46] no contributor addresses why other groups—children, in particular, spring to mind—do not or perhaps cannot serve as additional or alternate cultural centers.

The book also fails to adequately address the inherent gendering of human rights as a concept, focusing instead on how particular human rights discourses hinder or obscure women’s rights in specific cultural contexts.  Though several essays decry human rights’ dependence on the idea of the autonomous, secular male citizen, for instance, they spend little time investigating the basis for that reliance, nor do they suggest whether human rights is theoretically incapable of, or merely averse to, accommodating a communal, religious, and/or female model.  Other fundamental questions are raised and left unanswered by the essays’ look at the basis of humanitarianism: if, as Scully contends, human rights work is necessarily motivated by empathetic concerns for vulnerability,[47] do human rights workers essentially feminize or emasculate those currently without or seeking rights?   Can activists successfully dissociate weakness or victimhood from gender when they consistently label women as the most in need of external intervention?  Moreover, should we nevertheless encourage NGOs to achieve their aims without painting those they help as victims, weak, and in need of rescue, even if they are capable of un-gendering notions of victimhood?  These and other critiques of the essential gendering of humanitarianism linger at the edges of the anthology, playing a weak second fiddle to critiques of its effect on known women’s issues and women’s rights violations like domestic violence, arranged marriages, and women under Islam.[48]

The anthology further falls prey to endemic problems of disaggregation, allowing its essays to evaluate human rights concepts without a shared emphasis or direction.  Indeed, some essays barely use the term “human rights,” looking exclusively at the progression of a women’s issue in a location and merely mentioning in passing that transnational discourses have shaped the local movement.[49]  Only a few essays (namely, those of Scully, Merry, Stephen, and Mary Jane N. Real[50]) consciously build off each other by each directly questioning human rights’ ability to incorporate concerns for gender and culture.  The result is a collection of insights on a topic, rather than a directed investigation into the controlling question the introduction explicitly sets out: how can the intersection of gender and culture reveal the limitations of human rights?  More problematically, this aggregation of disparate insights leaves the work without a clear and cohesive message, even a provisional one.  The authors’ quest to neither “easily celebrate [n]or condemn the current ascendancy of the ‘women’s rights are human rights’ framework”[51] is laudable in its commitment to a thorough and neutral critique, but their deliberate evenhandedness leaves the work’s defining statement as the vague truism that human rights frameworks present both advantages and disadvantages in pursuing gender justice.  Perhaps, given the centrality of such frameworks to the current women’s rights movement, the anthology’s acknowledgment of the difficulties of applying human rights to gender struggles represents a more powerful expression of dissent than its seeming equivocation would lead an unfamiliar reader to believe.  However, one still cannot help but wish these authors would expand, if not strengthen, their critiques beyond acknowledgment of human rights’ imperfection.  If they cannot fully celebrate or condemn the movement, they can still probe more deeply into its first principles to see if its implementation can be successfully modified, or to use the complexity of the issue to craft more definite or nuanced solutions.

Ultimately, then, the book’s strongest message must be found in its unstated yet persistent emphasis on individual, local voices, which can perhaps be elevated to a cautious approbation of culture in effectuating women’s rights and human rights work.  This is, of course, not to suggest that the contributors condone the continuation of oppressive or misogynistic practices in the name of culture, but rather that they repeatedly recognize the significant role played by local culture in the key process of “vernacularization.”[52]  Indeed, if there exists a consistent enemy of the contributors, it is notably not the cultural repressors so vilified by foreign activists, but the activists who seek to impose human rights from the outside, heedlessly trampling culture and local voices in the process.[53]  The lauded prioritization of vernacularization and its interweaving of rights with culture also entail an acceptance of varying directions of gender justice, even if the methods or issues chosen “are not our priorities.”  It seems no coincidence that Hodgson’s own piece takes “These Are Not Our Priorities” as its title, nor that the book and individual essays pointedly refuse to take any stand on what those priorities should be.[54]  Rather, the anthology demands that women and activists maintain only one priority: commitment to enabling women to express and demand their rights—women’s or human—in their local cultures.  Human rights frameworks, the anthology suggests, are most effective and least problematic when used to “create[ ]space for alternative . . . discourses regarding gender identity,”[55] and understood as discourses meant to foster different, original, and organic expression.  In portraying this nuanced and cautiously optimistic vision of the role of human rights discourses in enabling gender justice, Gender and Culture at the Limit of Rights succeeds beautifully.



* J.D. Candidate, Harvard Law School, Class of 2014.


[1] Dorothy L. Hodgson, Introduction to Gender and Culture at the Limit of Rights 1 (Dorothy L. Hodgson, ed., 2011).


[2] See Pamela Scully, Gender, History, and Human Rights, in Gender and Culture at the Limit of Rights, supra note 1, at 17, 20–21.


[3] See Ousseina D. Alidou, Muslim Women, Rights Discourse, and the Media in Kenya, in Gender and Culture at the Limit of Rights, supra note 1, at 180, 180.


[4] See Lila Abu-Lughod, The Active Social Life of “Muslim Women’s Rights,” in Gender and Culture at the Limit of Rights, supra note 1, at 101, 114–18.


[5] Robyn M. Rodriguez, Fighting for Fatherhood and Family: Immigrant Detainees’ Struggles for Rights, in Gender and Culture at the Limit of Rights, supra note 1, at 200, 203.


[6] Hodgson, supra note 1, at 6.


[7] Id. at 8.


[8] Id. (quoting Peggy Levitt and Sally Engle Merry, Making Women’s Rights Human Rights in the Vernacular: Navigating the Culture/Rights Divide, in Gender and Culture at the Limit of Rights, supra note 1, at 81).


[9] Id. at  9.


[10] Scully, supra note 2, at 19 (quoting Sally Engle Merry, Human Rights and Gender Violence: Translating International Law into Local Justice 226 (2006)).


[11] Id.


[12] See id. at 20–21.


[13] Salma Maoulidi, Between Law and Culture: Contemplating Rights for Women in Zanzibar, in Gender and Culture at the Limit of Rights, supra note 1, at 32, 33.


[14] Id.


[15] See, e.g., Dorothy L. Hodgson, “These Are Not Our Priorities”: Maasai Women, Human Rights, and the Problem of Culture, in Gender and Culture at the Limit of Rights, supra note 1, at 138, 150­–51, 153–54; Scully, supra note 2, at 27.


[16] See Hodgson, supra note 15, at 153–54; Scully, supra note 2, at 30.


[17] See Maoulidi, supra note 13, at 45.


[18] See Caroline Yezer, How Not to be a Machu Qari (Old Man): Human Rights, Machismo, and Military Nostalgia in Peru’s Andes, in Gender and Culture at the Limit of Rights, supra note 1, at 120, 129–30.


[19] See, e.g., Sally F. Goldfarb, A Clash of Cultures: Women, Domestic Violence, and Law in the United States, in Gender and Culture at the Limit of Rights, supra note 1, at 55, 60 (referencing works by Goldfarb, Catharine A. MacKinnon).


[20] See, e.g., Maoulidi, supra note 14, at 53 (discussing women’s fighting for a role in determining Zanzibari political identity).


[21] See, e.g., Hodgson, supra note 15, at 141–42 (describing how triple marginalization of indigenous African women delayed the first continent-wide conference of indigenous women until 1998).


[22] Scully, supra note 2, at 21.


[23] Id. at 30.


[24] Hodgson, supra note 15, at 151–52.


[25] Id. at 154.


[26] Lynn Stephen, The Rights to Speak and to Be Heard: Women’s Interpretations of Rights Discourses in the Oaxaca Social Movement in Gender and Culture at the Limit of Rights, supra note 1, at 161, 161.


[27] See Alidou, supra note 3, at 180.


[28] See Levitt and Merry, supra note 8, at 92–93.


[29] See Abu-Lughod, supra note 4, at 109.


[30] See Stephen, supra note 26, at 161.


[31] See Rodriguez, supra note 5, at 200.


[32] See Town of Castle Rock v. Gonzales, 545 U.S. 748 (2005).


[33] See, e.g., Goldfarb, supra note 19, at 64, 76; Levitt and Merry, supra note 8, at 98–99.


[34] See, e.g., Goldfarb, supra note 19, at 76; Levitt and Merry, supra note 8, at 98–99.  Indeed, as Goldfarb notes, “[Gonzales’s] hearing before the [IACHR] was the first time she was able to speak in a legal forum about her ordeal.”  Goldfarb, supra note 19, at 240 n.13 (emphasis added).  The IACHR ultimately found for Gonzales, holding that the United States had failed to protect Gonzales and her children from domestic violence, denying their rights to equal protection, and had violated Gonzales’s right to judicial protection under the American Declaration. See Lenahan (Gonzales) v. United States, Case 12.626, Inter-Am. Ct. H.R., Report No. 80/11 ¶ 5 (July 21, 2011), available at http://www.oas.org/en/iachr/decisions/2011/USPU12626EN.doc.


[35] See Rodriquez, supra note 5, at 201–02.


[36] Hodgson, supra note 15, at 154.


[37] The other contributors’ persistently allude to this concept.  See, e.g., Abu-Lughod, supra note 4, at 102, 117; Stephen, supra note 26, at 161.


[38] See Levitt and Merry, supra note 8, at 91.


[39] See Stephen, supra note 26, at 171, 178 (describing how Oaxacan women “became public leaders who spoke and were heard ‘like men’”).


[40] Id. at 178 (citing Karen Brodkin, Caring by the Hour: Women, Work, and Organizing at Duke Medical Center 132 (1988)).


[41] Id. at 178.


[42] Cf., Levitt and Merry, supra note 8, at 95 (describing one organization’s claim that “lesbian rights are human rights”); Maoulidi, supra note 14, at 50 (mentioning heightened criminalization of homosexuality in Zanzibar following LGBTI advocacy).


[43] Hodgson, supra note 6, at 4.


[44] See Yezer, supra note 18, at 129.


[45] See Rodriguez, supra note 5, at 207.


[46] See, e.g., Maoulidi, supra note 14, at 32 (“Women became the ultimate cultural icons through which a society would resist cultural intrusion and assimilation.”).


[47] See Scully, supra note 2, at 20–21.


[48] The explicit focus of essays by Goldfarb, Maoulidi, Abu-Lughod and Alidou, respectively. Yezer does consider a broader picture of human rights’ gendering, but is more concerned with the effects of the masculine “insecurities” wrought by humanitarian intervention than with investigating the fundamental gendering of human rights theory.  See Yezer, supra note 18, at 121.


[49] See, e.g., Alidou, supra note 3, at 197 (concluding, somewhat perfunctorily, that an examination of language in a Kenyan radio broadcast “clearly shows Kenyan Muslim women’s exposure to global transnational Muslim women (feminist) discourses”).


[50] Mary Jane N. Real, “Defending Women, Defending Rights: Transnational Organizing in a Culture of Human Rights,” in Gender and Culture at the Limit of Rights, supra note 1, at 218.


[51] Hodgson, supra note 6, at 2.


[52] See supra notes 36–41 and accompanying text.


[53] See, e.g., Hodgson, supra note 15, at 150; Rodriguez, supra note 5, at 211; Scully, supra note 2, at 30; Yezer, supra note 18, at 134.


[54] Goldfarb’s essay stands out as the only piece to make clear policy recommendations; however, foremost among even these is the idea of “woman-defined advocacy,” which “incorporate[s] women’s own narratives” and allows women “to set priorities and decide on strategy.”  Goldfarb, supra note 19, at 70.


[55]Alidou, supra note 3, at 181.




Batterers As Agents of the State: Challenging the Public/Private Distinction in Intimate Partner Violence-Based Asylum Claims

A man in Africa grew up in a country where has been raised to believe — through social traditions, tribal rules, and everyday practice — that members of his tribe are inferior to and dependent on a dominant tribe. The man believes that he is no less a human being than members of the dominant tribe and that he deserves to live free of fear. He joins a dissident group and hands out pamphlets advocating equality. Shortly thereafter, a group of thugs who are members of the dominant tribe beat him and threaten to kill him. "You seem to think that you are in a position to defy us," they say. "You seem to think that you are equal to us. We shall remind you of your place in this society." The beatings and threats continue and the man eventually seeks help from the police. The police, most of whom are members of the dominant tribe, are unwilling to help. "You are in a bad situation but we cannot do anything to interfere. Our laws and our culture prohibit it. Just keep your mouth shut from now on and try to avoid these people." Other members of the man's tribe are intimidated upon seeing how their fellow tribe member has been treated for his behavior, and some of them stop their dissident activities.

After another particularly bad beating, the man finally escapes. He makes his way to the United States and applies for asylum on the basis of two grounds: (1) his political opinion opposing the domination of the elite tribe; and (2) his membership in the particular social group of the subjugated tribe.


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Book Review: Dangerous Sex, Invisible Labor

A student review of Prabha Kotiswaran's 
Dangerous Sex, Invisible Labor:
Sex Work and the Law in India 
Posted: January 23, 2012 at 5:45 p.m.
Review by: Raadhika Gupta*
Harvard Law School LLM Candidate 2012 


I. Introduction

Dangerous Sex, Invisible Labor: Sex Work and the Law in India by Prabha Kotiswaran is a fascinating and illuminating description of sex work in India, written in search of an approach which can better theorize sex work in third world counties.  Kotiswaran analyzes different feminist approaches that exist on sex work and tries to formulate a theory based on a materialist realist understanding of sex work in India.  For this purpose, she visits two sex work markets of India—Tirupati, the famous pilgrimage, and Sonagachi, a red light area in Kolkata—to gain insight into the sex industry from the perspectives of sex workers themselves.  Based on this study, she formulates a postcolonial materialist feminist theory, which argues in favor of recognition of sex work as a form of labor, based on a contextual understanding of the sex industry. 

Even before reaching that theory, Kotiswaran takes the readers into the complex political economies of Tirupati and Sonagachi, problematizing sex workers, sex work markets, and the various other stakeholders involved in the industry.  She analyzes sex work in the background of the anti-sex work criminal law in India, the Immoral Trafficking (Prevention) Act of 1956 (ITPA), but also considers a whole range of other legal and non-legal rules playing a part in the sex work industry.  In challenging the existing assumptions about third world sex worker, this book greatly contributes to the existing sex work literature, viewing the debate from the lens of the sex workers themselves.  In effect, it presents a highly contextualized analysis of sex work, identifying the enormous complexities that exist in such theorizing.

Kotiswaran neatly divides her book into three Parts, and to do justice to this logical flow, this Review will follow a similar structure.  Part II of the Review discusses Kotiswaran’s analysis of existing feminist debates on sex work and the place of materialist feminism in theorizing on sex work.  Part III deals with her study on sex work in Tirupati and Sonagachi and the contributions of that study to feminist literature.  Part IV examines the postcolonial materialist feminist theory formulated by her in light of her empirical study and observations.

II. Sex Work Debates and the Place of Materialism

Prostitution is probably one of the oldest and most important issues in feminist discourse, yet it is an area marked by several extreme feminist approaches without any feasible middle point or solution being in sight.  Kotiswaran lands us right in the middle of the abolitionists versus sex work advocates debate by beginning her book with a “mobilized third world sex worker[ ]” image, which stands out in contrast to the portrayal of sex workers as exploited and enslaved.[1]  This debate occupies a major portion of Part One of the book as she explains both approaches—the abolitionist approach which views sex work as an institution of violence and discrimination and asks for its abolition; and the work position which calls for recognition of sex work as ‘work’ and posits sex workers as possessing the agency to choose their occupation.  She also explains approaches falling between these two extremes, terming them as “[m]iddle-ground feminism.”[2]  Since Kotiswaran attempts to understand sex work from a third world perspective, grounding any theory of sex work in material reality is important to her.  Her analysis of materialist feminist theories reveals that while most material feminists were opposed to the sex work position, their efforts in grounding sex work in the context of the sex markets and the macro-political economic conditions has a lot to offer.  She later draws from materialist theories and uses what she calls the “experimental space for more distributive possibilities for prostitution law reform”[3] left by materialist feminists to present her postcolonial approach in the later part of the book.

Thus, Part One gives the readers a good insight into the current feminist debates on the issue of sex work.  Although Kotiswaran  does not reveal her own theory, the reader is left with the impression that she favors the sex work position.  The way she has problematized existing theories, it is also clear that she takes a pro-sex work position for reasons different from those that have been taken hitherto, basing it on a study of political economy of sex work.  This Part indicates both Kotiswaran’s own discomfort with the existence of multiple conflicting views on sex work without a meeting point and her awareness that such conflicts do not help the women on ground.  For example, she points out how the lack of agreement on who qualifies as a “forced” sex worker has reinforced stereotypes of sex workers as innocent if trafficked into sex work and guilty if engaging in it voluntarily, ignoring that many “third world women might in fact choose to do sex work out of necessity.” [4]  Thus, this Part introduces the reader to existing feminist debates and into her promise to use materialist theories and formulate her own theory based on a study of political economy of sex markets in India.

III. Contextualizing Sex Work

In Part Two of her book, Kotiswaran discusses the political economy of sex markets in two Indian cities, Tirupati and Sonagachi, based on her empirical work in these areas.  The choice of these two cities to examine sex markets is fascinating, with one being a famous pilgrim place, an unlikely choice for a sex work analysis, and the other being a typical red light area, already popular in sex work debates due to the presence of the Durbar Mahila Samanwaya Committee (DMSC), a community of sex workers representing their interests, and because of the Oscar-winning documentary Born into Brothels based on that area.  The two places also present a stark contrast in the “institutional settings” of the respective sex markets. [5]  Kotiswaran focuses her discussion of Sonagachi on “brothel-based sex work” setting,[6] but Tirupati is characterized by travelling sex workers and a lack of “spatially marked neighborhoods housing brothels.”[7]  This Review will discuss three predominant aspects of this Part: the unpacking of sex work and sex markets into their several layers; and her critique of the structural analysis theory based on her empirical research.

A. The Lived Experiences of Sex Workers

Feminist approaches on sex work have often been criticized for being disconnected with the reality or “lived experiences” of women in sex work.[8]  However, Kotiswaran has taken effort to describe sex workers in their own voice.  Throughout the book, she accounts for how sex workers consider themselves and their work;[9] their experiences with various stakeholders like police, customers, brothel owners, and goons;[10] the various reasons for which different sex workers entered sex work; and their future aims.

The Part again presents contrasting images of sex workers.  While Kotiswaran begins the chapter with the image of an ailing and dying AIDS infected sex worker,[11] the chapters present images of brothels as any other ordinary Indian household with the landlady saying her prayers before pictures of Hindu deities, running usual errands, and working on embroidery[12] and sex workers watching television or tutoring their children,[13] contrasted with an image of sex workers actively arguing in sex worker meetings.[14]  These descriptions present the diverse realities of different sex workers, far from uniform, written hardly in a manner that would lead the readers automatically to her pro-sex work position conclusion.

B.  Unpacking Sex Work

Even in describing the lived experiences of sex workers, perhaps the greatest contribution of the book lies in offering not the reality, but realities of sex work.  Not only does Kotiswaran present different images of sex workers themselves, but also unpacks sex work into various levels.  Sex work can be categorized in various ways and the functional independence and income of sex workers depends on a number of factors like the institutional setting in which sex work takes place, “mode of organization of sex work”, influence of internal and external stakeholders, and “scale of a sex business”.[15]  Not only are the sex work markets in Tirupati and Sonagachi different with respect to these factors, each sex market itself has a variety of markets within itself.

In Tirupati, Kotiswaran identifies three predominant institutional settings: (1) street economy, where sex work is performed in public places like highways, bus stations, and railway stations; (2) household economy, dominated by housewives who often perform sex work in secret from their families, either under a contractor or independently; and (3) hospitality industry, where sex work is performed in lodges as bonded labor or on contract, or in hotels. Sex workers’ income, investment, legal risk involved, and functional independence greatly vary in each of these settings, and among the subcategories within each setting.[16]  Further, sex workers in Tirupati prefer to work in many institutional settings, instead of being confined to one.[17]

In contrast, Kotiswaran focuses on brothel-based sex work in Sonagachi, although most of the sex workers in Sonagachi are self-employed.[18]  She identifies three kinds of relations flowing from this setting—labor relation, tenancy relation, and service relation.  She again unpacks sex work and describes how the functional independence of sex workers with different modes of organization of sex work.  The important modes of organization in sex work in Sonagachi are: (1) chhukri mode, resembling bonded labor of sex workers, many of whom are minors;[19] (2) adhiya mode, where the brothel keeper and sex worker share the price per transaction;[20] and (3) self-employed sex workers, who could be lessors or lessees.[21]

For both Tirupati and Sonagachi, she also nuances the role played by various internal and external stakeholders, like brothel keepers, brokers, customers, police, and local goons who harass the sex workers.  An interesting part of this chapter is Kotiswaran’s analysis of the tenancy relation, where she describes how rent control laws and real estate market in Sonagachi has a huge role to play in determining individual sex workers’ income and independence, describing “tenancy practices” as “the single-most decisive factor in the economics of Sonagachi’s sex market.”[22]  There are three types of tenancy arrangements in Sonagachi: (1) payment of selami, or “a premium for the right to rent” the property; (2) renting “‘on contract’” with a deposit and periodic rental payments; and (3) payment “on ‘commission’”, where rent is paid per sex work.[23]  The state of West Bengal has long been governed by state rent control laws that put a ceiling on the rent amount that can be charged.  However, as revisions to the law were not up-to-date with the economy, landlords illegally started charging selami from their tenants.[24] These tenancy arrangements play an important role in determining sex workers’ functional independence.  After escaping from the chhukri mode of sex work, sex workers often work in the adhiya mode until they accumulate enough money to pay the selami.  After that, sex workers either continue with sex work as self-employed, or run a brothel, or rent out a room to other sex workers as lessees.[25]

These differences present interesting contrasts between the structure of sex work in Tirupati and Sonagachi.  With the travelling sex workers of Tirupati, some of them engage in sex work as a part-time activity to supplement their income; sex work in Tirupati resembles work in the unorganized sector in the economy.  Sonagachi, on the other hand, can be analogized to a structured organization where sex workers are trying to move up the hierarchical ladder from being a chhukri to a self-employed sex worker to get a better income and more independence.

It is important to note that although Kotiswaran structures her empirical findings and tries to give a neat classification of how sex work operates in Tirupati and Sonagachi, the purpose of this analysis is rather to un-structure sex work and to discard the monolithic image of sex workers, sex industry, and the various stakeholders involved.  This unpacking is important for her to be able to formulate a postcolonial materialist perspective on sex work.

C. Critique of the Structural Bias Thesis

The structural bias theory has been used to identify various biases present in anti-sex work criminal laws and in the enforcement of such laws, ultimately causing discrimination against sex workers.[26]  Kotiswaran argues that this theory applies in the context of both Tirupati[27] and Sonagachi.[28]  She argues that the ITPA suffers from a “substantive bias” as it criminalizes sex workers who are already victims of capitalist, patriarchal economies; from a “bad faith bias” as corrupt law enforcement officers, in collusion with politicians and brothel keepers, abstain from enforcing ITPA; and “procedural bias” as investigations are often conducted in an improper manner.[29]  Even if “ITPA is not enforced, the criminal status” that it imposes on sex workers lowers their bargaining power with internal stakeholders, for example, by preventing them from enforcing contracts against customers, brothel keepers, and landlords.[30]  This structural bias thesis is used both by abolitionists to argue for “the need for robust anti-prostitution criminal laws”; and by sex work advocates to highlight law’s “social exclusionary effects on sex workers.”[31]

However, Kotiswaran uses her analysis to identify certain limitations of the structural bias theory.  Her critique is basically based on an application of the problematizing of sex work that she does earlier.  She points out how the “highly internally differentiated” nature of sex market makes it difficult to apply a generalized structural bias theory.[32]  Sex workers might have conflicting interests, and there may not be any notion of “sex workers’ interests.”[33]  This is even more problematic in light of the “fluidity of norms and practices” that exist within the sex industry.[34]  A whole range of legal and non-legal rules, including criminal laws, tenancy laws, social rules and customs cause the various “stakeholders to reorient themselves vis-à-vis each other.”[35]  Thus, ITPA functions in a complex sex industry and within a complex web of laws, and structural bias cannot be understood looking at ITPA standing isolated.[36]

Kotiswaran’s analysis on tenancy relations is fascinating not only as a means to view the structural bias theory, but also as giving an insight into how laws operate on the ground.  Kotiswaran mentions that a tenancy relation involving selami is prohibited under the ITPA for the offense of keeping a brothel or allowing premises to be used as one, would be void under the Indian Contract Act of 1872 as being against public policy, and invalid under rent control laws.[37]  The situation in Sonagachi is an interesting exemplification of the Coasean irrelevance, according to which legal entitlements become irrelevant if economic allocation reaches the same or a more efficient result.[38]  Kotiswaran’s analysis of demand and supply of property in Sonagachi due to the prevalence of the sex work industry reflects the same by demonstrating how economic forces in the sex work market have made the rent practices self-enforcing in spite of the illegality under multiple statutes.[39]  Considering that feminists on both sides of the sex work debate have shown a reliance on use of laws to solve the sex work issue, this analysis poses important questions over the usefulness of law in the midst of an existing sex market economic structure.

IV.  The Postcolonial Materialist Theory: Giving Voice to the Sex Workers

After introducing the sex work debate and the usefulness of materialist analysis in Part One, and problematizing the sex work industry in Part Two, Kotiswaran has set the perfect ground for presenting her postcolonial materialist feminist perspective.

For her it is important to have a realist understanding of how anti-sex work laws impact sex workers in order to formulate a feminist theory on sex work,[40] and it is important to understand the role of sex work market.[41]  She assesses the impact of various regulatory proposals, namely partial decriminalization, complete decriminalization, and legalization for empowerment, on sex work in Sonagachi, taking into account the contextual framework of different kinds of laws including criminal law, the different modes in which sex work is organized, and different kinds of relations that exist between different stakeholders, and keeping in mind the present realities of the de facto decriminalization under ITPA.[42]

After this analysis, she tries to lay down a postcolonial materialist feminist theory of sex work. Not only is this theory based on the realities of sex work, she also tries to ensure that she formulates her theory based on the experiences of sex workers themselves.  She problematizes both the sex work position and the abolitionist position as she presents a perspective based on the responses of sex workers themselves.  Sex workers view sex work as any other form of reproductive labor, and not as any unique kind of labor.[43]  Unlike radical feminists, they have little concerns about commodification, but are more concerned about other power dynamics in the sex industry that disempower them.[44]  Far from being ignorant or living in false consciousness, sex workers seem to be in full awareness of the conditions of structural inequality under which they earn their livelihood.[45]  Thus, in arguing for a sex work position, DMSC is not representing a liberal view, but is rather responding to the state violence and rent-seeking practices that anti-sex work criminal laws have led to.[46]

In answering how sex work issues should be addressed under such an approach, she again relies on sex workers’ own perspectives on recognition, redistribution, and regulation.  Sex workers make mixed claims of recognition and redistribution, both made as complimentary claims in order to ultimately reduce the social stigma attached to sex work.[47]  Sex workers desire more for the social than the legal recognition of sex work and consider the legal recognition of sex work as a step towards the same.  Their demands for redistribution include all benefits offered by the state to unorganized sector in general.[48]  While recognition of sex work as a form of labor is important for her postcolonial materialist theory, this does not mean that she is unaware of the inequalities that do exist in sex work.  Kotiswaran tries to delink sex work from our “‘cultural sensibilities’”, at the same time acknowledging that we still need to deal with the actual harm and inequality that exists in sex work, but without treating sex work as an exceptional economic activity.[49]

To address concerns of exploitation in sex work, she goes back to her contextual understanding of sex work in India to conclude that with “the heterogeneity of sex markets”[50] it is not possible to have a uniform “theory of exploitation”.[51]  She examines the possible ways in which regulation of sex work can be more grounded in material realities, including the possibility of self-regulation by sex workers, pointing to the active role of the DMSC, but also highlights the danger such self-regulation could have in reinforcing the same stereotypes that the law does.[52]  The question of regulation has been largely left open, allowing feminists to explore how regulation or self-regulation can best be carried out.

Kotiswaran’s theory represents a genuine attempt to actually form a theory based on the voices of sex workers themselves.  While she has made a brilliant effort in contextualizing sex work in the political economy in which it exists and in recognizing multiple realities, this is also the delicate area which can invite criticisms over her conclusion.  The fact that her theorizing is rooted in realities, and not one reality, means that there are in fact many realities that one will have to deal with. 

Thus, where Kotiswaran herself argues that there is no homogeneity between sex workers, can there be then any single sex worker response seeking recognition of sex work? Emprical research and sex worker accounts in Sonagachi itself have been used to argue for an abolition position.[53]  For example, MacKinnon reveals that sex workers in Kolkata have reported their lack of choice over sex and over their customers [54]  She also reports how DMSC in fact stifles the voices of individual sex workers by not even allowing some of them to speak to outside feminist researchers, and the choices that it makes available allows sex workers only to continue in sex work.[55]  While Kotiswaran’s description of sex work in India does not present a generalized image of the third work sex worker as poor, enslaved, and exploited, her accounts also do not dispute those of radical feminists.  Her empirical work reveals that most women who enter sex work have faced abuse in their lives earlier,[56] all of them do not consider sex work a respectable occupation themselves and would rather quit,[57] and at least some of them do live in conditions of bonded labor.[58]  In fact, one sex worker interviewed by Kotiswaran says that she did not enter sex work by force or deception but because of economic compulsion, even though she was forced to “entertain customers, [and subject to] beating [ ] when she refused.”[59]

Two major aspects of the political economy that seem to keep sex workers continue in Kotiswaran’s analysis is the lack of equally remunerative alternative options[60]  and the prevalent sexual harassment in other kinds of occupations.[61]  In her efforts to develop a perspective based on sex workers’ responses, Kotiswaran’s theory does not explore the idea of reducing economic compulsion or sexual harassment at other sites and if that may favorably impact sex workers.  Thus, while her theory does a significant theorizing for existing sex workers, it fails to consider either the “entry point” for women who are forced into sex work, or the “exit point” for women who want to quit but are not able to.  In this light, her analysis comes out to be largely economic, rather than being rights-based.   

However, this weakness is also the strength of her book.  By restraining from dictating a “correct” approach to regulating sex work, Kotiswaran leaves space for feminists to formulate their own understanding(s) and find their own answers to difficult questions on sex work.  Her only condition seems to be to ensure that this theorizing is made in awareness and understanding of the complexities of sex work and sex work markets.

V. Conclusion

The greatest contribution of Dangerous Sex, Invisible Labor is perhaps in making visible the role of a variety of factors and players on various aspects of sex work in order to have any real understanding of the issue.  In theorizing based on the lived experiences of sex workers, denying a uniform sex worker identity, and acknowledging the role of diverse players in shaping the sex work industry, the book offers a sincere effort in presenting a genuinely contextualized understanding of sex work from sex worker’s perspectives, and avoids abstractionist theorizing.

This book offers a great thinking ground for readers by creating a remarkably large space for them to do their own theorizing.  In spite of the struggle presented in the beginning of the book over the lack of a meeting point among conflicting feminist positions, the book itself interestingly does not answer many of its own questions on sex work.  It presents realities, challenges assumptions, and places on the table even more contrasting images and pictures of a complex sex work industry than previously seen. 

Do not read this book to seek answers to the complex questions that the issue of sex work asks; instead, read this book to look for diverse perspectives based on a realist understanding of the issues.  Readers must be willing to hear voices of sex workers which might be different from the ones they have heard in the past, to overlook generalizations in favor of acceptance of the diversity, and to embrace but not challenge the heterogeneity that this issue inherently contains.  With this perspective, readers will be able to reach informed opinions of their own.








[1] Prabha Kotiswaran, Dangerous Sex, Invisible Labor: Sex Work and the Law in India 4 (2011).








[2] Id. at 32.








[3] Id. at 82.








[4] Id. at 36 (citing Ratna Kapur, Erotic Justice Law and the New Politics of  Postcolonialism 130 (2005)).








[5] Id. at 90.








[6] Id. at 138.








[7] Id. at 89.








[8] See, e.g., Deborah L. Rhode, Justice and Gender: Sex Discrimination and the Law 2 (1989) (stating generally that ingoring social contexts under which law develops is a major limitation of convential gender studies); Svati P. Shah, Distinguishing Poverty and Trafficking: Lessons From Field Research in Mumbai, 14 Geo. J. on Poverty L. & Pol'y 441, 452 (2007).








[9] Kotiswaran, supra note 1 at 89–90 (stating that sex workers often use vocabulary that indicates they consider sex work as any other occupation or business).








[10] See, e.g., id. at 107 (describing an Action Aid study showing that sex workers “likened brokers to foxes and lions, the police to snakes, customers to milk cows, rowdies to tigers, and vendors to monkeys who passed on information from one person to another”).








[11] Id. at 85.








[12] Id. at 152 (describing one of the brothels in Kolkata).








[13] See id. at 145.








[14] See id. at 132–33.








[15] Id. at 90–91.








[16] Id. at 88–107.








[17] Id. at 91.








[18] Id. at 138.  Kotiswaran chooses to study brothel-based setting in Kolkata for two reasons: (1) the focus on abuse in brothel-based sex work in policy debates; and (2) the uniqueness of the institution of brothel in sex industry.  Id. at 18.








[19] Id. at 142.








[20] Id. at 143.








[21] Id. at 150.








[22] Id. at 158.








[23] Id. at 159.








[24] Id. at 159.








[25] Id. at 161.








[26] Id. at 117.








[27] Id. at 119–22.








[28] Id. at 177–82.








[29] Id. at 117–18.








[30] Id. at 119.








[31] Id. at 119 (citations omitted).








[32] Id. at 177.








[33] Id. (internal quotation marks omitted).








[34] Id.








[35] Id.








[36] Id. at 178.








[37] Id. at 163.








[38] Ronald H. Coase, The Problem of Social Cost, 3 J.L. & Econ. 1, 15–16 (1960).  








[39] Kotiswaran, supra note 1, at 163–66.








[40] See id. at 186.








[41] See id. at 187.








[42] Id. at 189–210.








[43] Id. at 214.








[44] Id. at 213–14.








[45] Id. at 216.








[46] Id. at 222.








[47] Id. at 238–39.








[48] Id. at 239.








[49] Id. at 223 (citation omitted).








[50] Id. at 246.








[51] Id.








[52] Id. at 248.








[53] Catharine A. MacKinnon, Trafficking, Prostitution, and Inequality, 46 Harv. C.R.-C.L. L. Rev. 271, 289-90, 307-9 (2011).








[54] Id. at 281.








[55] Id. at 289.








[56] See, e.g., Kotiswaran, supra note 1 at 95–96.








[57]See, e.g., id. at 145, describing a retired sex workers who quit sex work as she considered that the income she earned was from selling her self-respect.








[58] Id. at 142–43 (describing conditions of work in the chhukri mode of organization in Sonagachi).








[59] Id. at 156–57.








[60] See, e.g., id. at 95 (describing one sex worker’s stated preference of factory work over sex work if factory work could provide a similar livelihood).








[61] See, e.g., id. at 99–100 (describing how one sex worker returned to sex work in Tirupati after she faced constant sexual harassment in her employment in a garment company in Chennai).he Law in India. By Prabha Kotiswaran. Princeton, NJ. Princeton University Press. 298 pages. $29.95 (paperback).

The Constitution and Female-Initiated Divorce in Pakistan

The legal status of Muslim women, especially in family relations, has been the subject of considerable international academic and media interest. This Article examines the legal regulation of divorce in Pakistan, with particular attention to the impact of the nation’s dual constitutional commitments to gender equality and Islamic law. It identifies the right to marital freedom as a constitutional right in Pakistan and demonstrates that in a country in which women’s rights are notoriously and brutally violated, female divorce rights stand as a ray of light amidst the “darkness” of the general legal status of Pakistani women. Contrary to the conventional wisdom construing Islamic law as opposed to women’s rights, the constitutionalization of Islam in Pakistan has proven to be a potent tool in the service of women’s interests. Ultimately, I hope that this Article may serve as a model for the utilization of both Islamic and constitutional law to benefit women throughout the Muslim world.

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Normalizing Sex and its Discontents: Establishing Sexual Rights in International Law

Human rights struggles are symbolic and political: their immediate battleground is the meaning of words, such as “difference” and “equality” or “similarity” and “freedom.” However, if successful, they have ontological consequences—they radically change the constitution of the legal subject and affect peoples’ lives. If we accept the psychoanalytic insight that people have no essential identities outside of those constructed in symbolic discourses and practices, what follows is that,“[h]uman rights do not belong to humans and do not follow the dictates of humanity; they construct humans. A human being is someone who can successfully claim human rights.”

[Man has no] dominion over his specifically sexual faculties, for these are concerned by their very nature with the generation of life, of which God is the source.

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