Lessons about Autonomy and Integration from International Human Rights, Law Journals, and the World of Golf


LESSONS ABOUT AUTONOMY AND
INTEGRATION FROM INTERNATIONAL
HUMAN RIGHTS, LAW JOURNALS, AND THE
WORLD OF GOLF

ELIZABETHM. BR UCI

In this essay I will consider the questions posed by the
symposium-"why have a feminist law journal?" and the specific question
of this panel, "which master, autonomy or integration, do we or should we
serve?"--together with the parallel questions that arise in the debate among
international human rights advocates and scholars about whether to address
women's human rights issues separately from "mainstream" human rights.
However, I want to begin on a slightly different (but not unrelated) topic:
women and sports. I am relatively newly married and, in one of those
important early negotiations of couplehood, I agreed to let my husband
educate me about golf; in return, he has agreed to develop a deeper
appreciation for feminist theory. Our interests have coincided in a series of
recent events in the sporting world. Let me provide just a few highlights.

In May of this year, Annika Sorenstam, often called "the world's
most dominant female golfer," participated in the Colonial Invitational, an
event on the Professional Golfers' Association (PGA) Tour. Sorenstam
played from the same tees as the men, with no special accommodations.
According to the Washington Post, her decision to play the event "touched
off debate among men and women over whether the experiment is good for
the sport and whether Sorenstam can ultimately compete."' It touched off
that same debate in my house. Other versions of this drama are playing out
elsewhere in the world of golf and have provoked significant emotion,
especially if accommodations, such as closer tees, are made for women.'

" Practitioner-in-Residence, Washington College of Law, American University.
This paper is a slightly revised, lightly footnoted version of remarks given at the Columbia
Journal of Gender and Law Symposium "Why a Feminist Law Journal?" on April 4, 2003.

1Steve Fainaru, Sorenstam to Play in PGA Tour Event Wash. Post, Feb. 13, 2003,
at DI. Although she did not make the cut, Sorenstam was widely lauded for her
performance. She "proved she could play with the boys." Associated Press, Valuable Lesson,
http://sportsillustrated.cnn.com/golfonline/news/2003/o5/24/sorenstam-follow-ap/ (last
visited Oct. 20, 2003). Sorenstam shot seventy-one and seventy-four in the initial rounds,
missing the cut by four strokes. Id.

2 My favorite example of the emotion raised bythe issue of women competing
with men (or girls competing with boys) is the story of seventeen-year-old Jenny Suh. Suh
won the Virginia AAA high school golf championship last year-the boys championship--
playing from the same course but different (closer) tees. Fern Shen, Chantilly Girl Tops the



Columbia Journal of Gender and Law

Then there is the controversy about this year's Masters
Tournament, one of the most prestigious events of the PGA Tour, held at
Augusta National Golf Club, a private club that does not allow women to
become members. Martha Burk of the National Council of Women's
Organizations has been a vocal opponent, and the council has argued that
the club, in light of its very public role, should not be permitted to exclude
women. They argue that the PGA and CBS, which broadcasted the event,
are complicit in this sex discrimination.3 There has been heated commentary
on both sides of the i ssue-but many of the well-known figures of golf,
such as Tiger Woods, have been largely silent.4

Finally, there are the current discussions over the future of Title IX,
the federal law that prohibits sex discrimination in any educational program
or activity that receives federal funds.5 Although it applies to all educational
opportunities, it is best known for its impact on sports. The biggest issues
are a round funding and t he loss o f some men's programs, allegedly a s a
result of the need to divert funds to women's programs. Those who protest
Title IX often argue that an equal allocation of funds and opportunities does
not make sense because women are "just not as interested in sports as
men.

6

There is certainly a great deal of ambiguity in our feelings about
women and sports, perhaps because men's sports continue to define our
normative conception of sports. Women are the extra letter-the WNBA or

Boys, Wash. Post, Dec. 6, 2002, at C12. This prompted not just jeers from some of the boys,
but also a chiding column on the Washington Post's Kid Page that concluded, "So, who is
the best high school golfer in Virginia? I don't know. But I don't think it's Jenny Suh." Fred
Bowen, An Uneven Playing Field?, Wash. Post, Dec. 6, 2002, at C 12.

3 See National Council of Women's Organizations, NCWO Takes on Augusta
National Golf Club, http://www.womensorganizations.org/news/position04.htm (last visited
Aug. 20, 2003); National Council of Women's Organizations, Hall of Hypocrisy,
http://www.augustadiscriminates.org (last visited Aug. 20, 2003); see also Kate Zernike,
Burk Fights the Battle She's Given, N.Y. Times, Apr. 11, 2003, at S1.

4 See, e.g., Clifton Brown, Augusta Marches On, With Its Rules Intact N.Y.
Times, Apr. 10, 2003, at S1; Bill Pennington, She Did Not Prevail This Year but Burk Has
Time on Her Side, N.Y. Times, Apr. 14, 2003, at D1; Leonard Shapiro, Trying to Master the
Situation, Augusta, Ga., Becomes Field of Battle for Debate Over Men-Only Golf Club,
Wash. Post, Dec. 12, 2002, at D1.

' See 20 U.S.C. § 1681 (1999) ("No person in the United States shall, on the basis
of sex, be excluded from participation in, be denied the benefits of, or be subjected to
discrimination under any educational program or activity receiving Federal financial
assistance.").

6 That argument is belied by both common sense and by women's and girls' actual

participation in sports. For example, since the enactment of Title IX, female participation in
high school athletics has increased by more than 800%. National Women's Law Center, The
Battle for Gender Equity in Athletics: Title IX at Thirty 4, 11-12 (2002). At the college level,
women's participation has increased from about 32,000 women to more than 150,000, an
increase of about 400%. Id.

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Lessons About Autonomy and Integration

LPGA--or the illegitimate competitors who get "special treatment" (or,
yes, the cheerleaders). Because men's sports are so powerful and sports is
still so powerfully gendered male,7 these current controversies highlight all
the hard issues of differences between women and men-the physical
differences (though not with the usual focus on sexuality and reproduction)
and also differences in history, interest, and opportunity. I think they "tee
up" consideration of recurring themes about autonomy versus integration.
Should women and men be treated the same or measured by a different
standard? Do we want to play together or on our own? How much of the
difference between women and men, even in the physical realm, is "real"
and how much is constructed? B ecause I a m a human rights teacher and
lawyer (and not much of a golfer), I want to consider how these questions
play out in the international human rights arena, and I will try to draw it all
together briefly at the end.

By way of background, I should explain that within the United
Nations (UN) system, there are instruments and mechanisms directed at
promoting and protecting human rights such as the Human Rights
Commission and the Human Rights Committee, and there are separate
instruments and mechanisms intended to address women's issues such as
the Commission on the Status of Women and the Committee on the
Elimination of Discrimination Against Women ("CEDAW Committee").'
Feminists have increasingly criticized the international system for this
bifurcated approach to h uman rights and w omen's rights, raising t he c all
prominently at the 1995 Beijing Conference and elsewhere that "women's
rights are human rights."9 The criticism is directed not just at the purported
substantive split or division of subject matter, but also at the practical
realities involved. Typically, the "mainstream" human rights mechanisms
have greater prestige, larger and predominantly male membership, generate

7 See Deborah Brake, The Struggle for Sex Equality in Sport and the Theory
Behind Title IX, 34 U. Mich. J.L. Reform 13, 82-107 (2001) (discussing the culture of sport
and its dominant construction as masculine).

See Michael O'Flaherty, Human Rights and the UN: Practice Before the Treaty

Bodies 15-45, 95-123 (2d ed. 2000) (describing the procedures and work of the Human
Rights Committee and the CEDAW Committee); Nigel S. Rodley, United Nations Non-
Treaty Procedures for Dealing with Human Rights Violations in Guide To International
Human Rights Practice 61 (describing the non-treaty procedures for addressing human rights
violations) (Hurst Hannum ed., 3d ed. 1999).

9 See Report on the Fourth World Conference on Women, Beiiing Declaration and
Platform for Action, at 2-132, U.N. Doc. A/CONF.177/20/Rev.I, U.N. Sales No. E.96.IV.13
(1995); see also Anne F. Bayefsky, The UN Human Rights Treaty System: Universality at
the Crossroads 127-28 (2001) (using the principle that "women's rights are human rights" to
support a recommendation that the CEDAW Committee should be moved to Geneva to be
more integrated with the other human rights treaty bodies).

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568 Columbia Journal of Gender and Law [Vol. 12:3

more attention to their findings, and have better working conditions and
longer working sessions than the women's rights mechanisms.'0

In considering our topic for the symposium panel, I wonder if there
are not many similar concerns that a rise in the context of a feminist law
journal-specifically denominated as such and separate from the
"mainstream" law journals. Does the separation of feminist law journals
from other law journals provide a forum for discussion of gender issues that
would otherwise remain unaddressed? Does it create a false sense that
feminist concerns can be parceled off from traditional legal issues? Does it
bring greater attention for women's issues or make them easier to ignore?
These questions are largely unresolved at the international level, and I think
the same is true in the law school context. I suspect there are many potential
comparisons that could be made, but I will focus on just a few that raise
these questions around differences in history, interest, and opportunity.

History. In my research for this symposium, I noticed a number of
commonalities between the international women's human rights movement
and the smaller movements to create feminist law journals at particular
schools. One that most struck me was that, at a basic level, both grew out of
environments that seemed (or were) "hostile" to the women in them.
There was a general and deep dissatisfaction with the adequacy of those
environments to incorporate and address the needs, interests, and concerns
of women.

I am most familiar with the origins of the women's human rights
movement, so I will begin there. Although the UN created a separate
Commission on the Status of Women as early as 1946, women's issues did

1o See Hilary Charlesworth et al., Feminist Approaches to International Law 85

Am. J. Int'l L. 613, 621-24 (1991) (discussing underrepresentation of women in UN human
rights bodies, particularly how the CEDAW Committee has faced pressure to increase male
representation, while no "male dominated" committees have faced criticism for having too
few women, id. at 624); Hilary Charlesworth & Christine Chinkin, The Boundaries of
International Law: A Feminist Analysis 174-87 (2000) (discussing the disproportionate
representation of men in the UN's membership and bureaucracy); Anne Gallagher, Ending
the Marginalization: Strategies for Incorporating Women into the United Nations Human
Rights System, 19 Hum. Rts. Q. 283, 294-309 (1997) (discussing the role of gender in the
treaty bodies).

See, e.g., Charlotte Bunch, Women's Rights as Human Rights: Toward a Re-
Vision of Human Rights 12 Hum. Rts. Q. 486, 487 (1990) ("only recently have significant
challenges been made to a vision of human rights which excludes much of women's
experiences"); Hilary Charlesworth, What are "Women's International Human Rights?", in
Human Rights of Women: National and International Perspectives 58, 59 (Rebecca J. Cook
ed., 1994) (noting that the developments in human rights "are built on typically male life
experiences and in their current form do not respond to the most pressing risks women
face"); see also Preface, I Hastings Women's L.J. (1989) (the female law student faces an
additional burden and "must recognize the fact that she is entering a male dominated
profession"); Shawn Marie Boyne et al., Beginnings, 1 S. Cal. Rev. L. & Women's Stud. 1
(1992) (describing the struggles and frustrations of their law school experiences that led to
the creation of the journal).



Lessons About Autonomy and Integration

not have much prominence at the UN until the 1 970s.12 The I 970s were
declared the Women's Decade (a strategy for drawing attention to issues),
and the UN commenced a series of World Conferences on Women, starting
in 1970 in Mexico City and followed in 1975 in Copenhagen. 3 This both
generated and fed momentum, and in 1979, the UN adopted the Convention
on the Elimination of All Forms of Discrimination Against Women
(CEDAW or the Women's Convention). 14 There was a third World
Conference on Women in Nairobi in 1985, and then a fourth in 1995 in
Beijing.' 5 By at least the early 1990s, however, scholars and activists had
begun explicitly questioning this separate track for women and calling for
integration of women's issues with so-called mainstream human rights.

The feminist critique of international human rights law and
institutions covers familiar territory. It argues that international law has
developed along male-oriented norms and fails to account for women's
experiences, that the international mechanisms follow that orientation and
are composed primarily of men, and that rights discourse is not necessarily
a meaningful or comprehensive response on many issues.' 6 However, the
question of autonomy or integration remains unresolved--or perhaps it is
more accurate to say that both strategies have been pursued. The separate
tracks continue to exist at the international level, and in some respects the
"women's" mechanisms have been strengthened. However, at the same
time, there has been some progress toward "mainstreaming" gender
concerns and the general trend of reform at the UN is toward consolidation
of the human rights mechanisms.'

7

There is something of a shared history when we look at law schools
and law journals. I was moved by the stories told in inaugural or

12 See Division for the Advancement of Women, Commission on the Status of
Women, http://www.un.org/womenwatch/daw/csw/index.html (last visited Mar. 31, 2003).

13 See Report of the World Conference of the International Women's Year, Mexico
City, June-July 1975, U.N. Doc. E/CONF.66/34, U.N. Sales No. E.76.IV.I (1976); Report of
the World Conference of the United Nations Decade for Women: Equality, Development and
Peace, Copenhagen, 15-30 July 1980, U.N. Doc. A/CONF.94/35, U.N. Sales No. E.80.IV.3
(1980).

'4 See Convention on the Elimination of All Forms of Discrimination Against
Women, opened for signature Dec. 18, 1979, 1249 U.N.T.S. 13 (entered into force Sept. 3,
1981).

15 See Report of the World Conference to Review and Appraise the Achievements
of the United Nations Decade for Women: Equality, Development and Peace, Nairobi, 15-26
July 1985, U.N. Doc. A/CONF.I 16/28/Rev.1, U.N. Sales No. E.85.IV.10 (1986); Report on
the Fourth World Conference on Women, supra note 9.

16 See Charlesworth, Feminist Approaches to International Law, supra note 10
(articulating the main points of criticism).

'7 See Bayefsky, supra note 9, at 133-39 (recommending consolidation of existing
treaty bodies).

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Columbia Journal of Gender and Law

commemorative volumes of journals (and reflected in mission statements)
that described the feelings of disconnect or isolation that prompted students
to create feminist law journals.18 Law school classrooms, law textbooks,
and the legal system itself can feel (and be) alienating, detached, and even
hostile to women. I think it is not coincidental that the first feminist journals
were created in the 1970s at the same time of increasing feminist activism
both in the United States and internationally. 19 I think there is a similar
parallel between the energy of the "women's human rights movement" in
the early 90s and the subsequent wave of new gender journals created at

20that time. I assume that the discussion of integration versus autonomy is a
regular one among journal folk, who desire to push other journals to
broader consideration of feminist issues, and yet recognize the continuing
need for a separate space.

Interest. This shared history is important in its own right, but it is
also connected to the question of women's and men's different interests,
real or constructed, in law schools, in international law, or even in sports.
One of the most powerful arguments for a separate set of institutions, for
women's human rights or for feminist legal studies, is the need for different
or more fora for discussing issues.

At the international level, this has been the rationale behind
separate "women's rights" organizations, conferences, and treaties. As
always, there is an initial question of: what is a women's, feminist, or
gender issue? There is also the ever-present risk (or perhaps certainty) of
essentializing women in our efforts to discuss issues of concern to some, or
even many, women.2' Much of international women's human rights work

18 See supra note 11.

19 The Women's Rights Law Reporter, published at Rutgers University School of

Law starting in 1972, was apparently the first women's law journal. Women's Rights Law
Reporter, About the Reporter, http://newark.rutgers.edu/-wrlr/ (last visited Apr. 2, 2003). It
was followed in 1978 by the Harvard Women's Law Journal. Harvard Women's Law
Journal, http://www.law.harvard.edu/studorgs/woman law journal/ (last visited Apr. 2,
2003). See also C hristine A. L ittleton, 0 & A: Why a W omen's L aw J ournal?, 1 U CLA
Women's L.J. 3 n.l (1991) (describing the history of the development of women's law
journals).

20 The majority of current gender journals started in the late 1980s and early 1990s:

in 1989, Columbia Journal of Gender and Law, Hastings Women's Law Journal, and Yale
Journal ofLaw and F eminism; in 1 990, Texas Journal of Women and the Law; in 1 992,
American University Journal of Gender, Social Policy and the Law, Buffalo Women's Law
Journal, Southern California Review of Law and Women's Studies, UCLA Women's Law
Journal; in 1993, C ardozo W omen's L aw J ournal, M ichigan J ournal o f Gender a nd L aw,
William & Mary Journal of Women and the Law; and in 1994, Duke Journal of Gender Law
and Policy.

21 See Angela P. Harris, Race and Essentialism in Feminist Legal Theory, in

Critical Race Feminism: A Reader 11 (Adrien Katherine Wing ed., 1997) (criticizing gender
essentialism in feminist legal theory); Kimberl6 Crenshaw, Mapping the Margins:
lntersectionality, Identity Politics and Violence Against Women of Color, 43 Stan. L. Rev.

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2003] Lessons About Autonomy and Integration

has focused on issues of violence against women in its myriad forms and
issues tied to the status and biology of women-marriage, family,
reproduction. In many respects, activists have made progress in adding
these issues to international dialogue. However, there is a growing global
feminist critique that even this "expanded" forum for women is limited to
topics o f interest to w omen o f privilege and excludes m any o thers.22 W e
need to continue to work to ensure that there is room t o a ccommodate a
broad range of women's interests.

For feminist law journals, the objective of creating a new forum or
new space for women's expression may be even more straightforward and
more compelling.23 In many ways, that is what defines a publication;
discussion, debate, and dialogue are its primary purposes. Like the
international bodies, feminist journals face the question of breadth of
coverage (what is a gender issue?) and also the real risk of essentializing
women in the attempt to promote discussion. Even a quick review shows
that the subjects that appeared in the earliest feminist journals-
reproductive rights, marriage and divorce, discrimination in the
workplace-are the same subjects that are still being discussed today.24 And
while these topics do make their way into traditional law journals, it is
certainly not with the same frequency or consistency. That may illustrate
the l imitations o f a feminist 1 aw j ournal, or it may suggest the perennial
nature of those topics.

1241 (1991) (noting the criticism of feminism in the United States by women of color as
focused too much o n c oncerns o f white, m iddle-class w omen); see also C handra T alpade
Mohanty, Under Western Eyes: Feminist Scholarship and Colonial Discourses, in Third
World Women and the Politics of Feminism 51 (Chandra Talpade Mohanty et al. eds., 1991)
(providing a critique of Western feminism).

2 2 See generally Mohanty, supra note 21.

23 Several women's law journals are explicit about the goal of providing a new or

expanded forum for discussing gender issues. See, e.g., Preface, I Colum. J. Gender & L.
(1991) ("The Journal is intended to serve as a forum for topics inadequately addressed by
most law journals and reviews."); Founding Committee, The Birth of a Journal, 1 Am. U. J.
Gender & L. v (1993) ("Our intent is to fill a void in feminist legal scholarship by providing
an opportunity for academic discussion that is otherwise overlooked by traditional
journals.").

24 For example, the first volume of the Yale Journal of Law and Feminism in 1989

included articles on reproductive rights, autonomy, pornography, and women in legal
education; its 2001 volume contains articles on sexual harassment, violence against women,
and women's health. See Table of Contents, I Yale J.L. & Feminism (1989); Contents, 13
Yale J.L. & Feminism (2001). The first volume of the Harvard Women's Law Journal in
1978 had articles on women and the legal profession, the Equal Rights Amendment, women
and athletics, sex discrimination and employment, parenting rights, and the treatment of
women under international law. See Contents, 1 Harv. Women's L.J. iii (1978). Its 2000 and
2001 volumes had articles on alimony, women and athletics, reproductive-based
discrimination, sexual harassment, and battered women. See Contents, 23 Harv. Women's
L.J. (2000); Contents, 24 Harv. Women's L.J. (2001).



Columbia Journal of Gender and Law

Opportunity. I will raise just one more area that is related to this
question of women's and men's different interests: their different
opportunities. At the international level, more mechanisms and institutions
(even separate ones with lower status) have simply provided more
opportunities for women to make their voices heard. I think this has been
particularly true at the global women's conferences and with the increasing
role given to non-governmental organizations at the international level. And
we see its impact in the development of human rights law. Again, however,
I do not think we can claim that women from various places and
perspectives are heard equally, and that is an area we need to give much
more attention.

For journals, the questions of opportunity are also raised in sharp
relief. On the one hand, more journal space is more journal space-more
chances for feminist scholars to have their work published, more room for
law students to experience working on a journal, more symposia on topics
of interest. On the other hand, there just are not that many feminist
journals-fewer than twenty in comparison to almost 200 general law
reviews and about 450 total law journals. 25 Moreover, there continue to be
issues of journal hierarchy. But I am optimistic. Although the hierarchy
exists, technology has been a great equalizer. Because so much legal and
scholarly research is now conducted online, where searches tend to be more
explicitly by topic or key word and not limited to particular journals as
hard-copy research tends to be, some of the traditional distinctions among
journals may have less significance. Regardless, gender journals serve an
important role in providing meaningful opportunities for more and broader
discussion of feminist issues.

Let me try to conclude on these points of comparison. When we
look at women's law journals, women's human rights, and women's sports,
there are some shared issues: a history of exclusion, the nature and validity
of the conclusions we draw about women's and men's different interests,
and the role and merit of expanded opportunities. I think it is important to
periodically ask questions like the ones posed by this symposium. Why a
feminist law journal? Why a feminist law journal in 2003? We can similarly
ask why a Women's Convention? What are we trying to achieve? Should
these separate mechanisms eventually become obsolete-should we put
ourselves out of business? Or will they have a continuing role and
continuing value, at least for the foreseeable future?

So we return to the question of which master we want to serve,
autonomy or integration? The answer to that question must be grounded

25 See Anderson Publishing Co., Law School Publications, Directory of Law

Reviews, http://www.andersonpublishing.comrrawschool/directory/ (last visited July 27,
2003) (compiled by Michael H. Hoffheimer). According to the lists provided, there are 444
student-edited law journals overall. Of those, 176 are general law reviews and 268 are
specialty journals. Only seventeen are gender and law journals.

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Lessons About Autonomy and Integration

firmly in the particular context and the particular time it is asked. It may
(and I think it does) make sense to keep moving in the direction of
integration of women's rights and human rights mechanisms at the level of
the international legal system. It may equally make sense (and I think it
does) to maintain or create feminist law journals at law schools across the
country. The separate international mechanisms may be reaching the end of
their effectiveness, while I think feminist journals are coming into their
own. And I think we are only just beginning to see how women will
radically reconceptualize our understanding of sports in the same way we
have begun to transform the law.

In this time and place, we need to serve both masters-with all the
complications that might entail. Autonomy makes sense sometimes-we
need a WNBA and an LPGA. But we also need to protest when separation
discriminates rather than encourages-we should shine the spotlight on
Augusta National. Ultimately we need women like Annika Sorenstam to
challenge our understanding of what a male-dominated activity or
institution like golf looks like and who can compete.

20031 573