Legal Capacity & Gender: Realising the Human Right to Legal Personhood and Agency of Women, Disabled Women, and Gender Minorities

La 4e de couverture indique : "This book explores the role of gender in the recognition of an individual's legal capacity. It discusses the meaning of the right to legal capacity and its two core elements - legal personhood and legal agency. It then analyses historical and modern denials of personhood and agency experienced by women, disabled women, and gender minorities - for example, prohibitions from voting, limitations on contracting, loss of personhood upon marriage, and gender binary requirements leading to an inability to exercise legal capacity, amoung others. Using critical feminist, disability, and queer theory, this book also offers insights into the construction of legal personhood and its role as a predictor of power and privilege. The book identifies patterns of oppression through legal capacity denial in various jurisdictions and discusses situations in which modern law continues to enforce these denials. In addition, the book presents solutions: it identifies practices to learn from in various jurisdictions around the world - including both civil law and common law jurisdictions. It also uses case studies to illustrate the ways in which existing laws, policies and practices could be reformed. As such, the book offers both a novel contribution to the field of legal capacity law and a tool for creating change and helping to realise the right to legal capacity for all." Foreword Preface Acknowledgements Contents Chapter 1: Right to Legal Capacity: Debates and Legal Argument 1.1 Introduction 1.1.1 Women, Disabled Women, and Gender Minorities as Minority Groups 1.1.2 Social Model and the Term `Disabled Women ́ 1.1.3 Neo-liberal Capitalism, Individual Rights, and the Importance of Legal Capacity 1.1.4 Right to Legal Capacity of Women, Disabled Women, and Gender Minorities 1.1.5 Focus on `Global North ́ 1.1.6 Overview of Chap. 1 1.2 History of the Right: UDHR to CRPD 1.3 Debates in the Drafting of Article 12 CRPD 1.4 General Comment No. 1: UN CRPD Committee ́s Interpretation of Legal Capacity 1.4.1 Solidification of Legal Capacity as Including Personhood and Agency 1.4.2 Legal Capacity Should Not Be Denied on the Basis of Mental Capacity 1.4.3 Definition of Substituted Decision-Making 1.4.4 Elements of Support for the Exercise of Legal Capacity 1.4.4.1 Application of the Guidelines for Support Beyond Disabled People 1.4.4.2 Positive Effects of the Support Paradigm 1.5 Resistance to Article 12 CRPD 1.6 Argument for Legal Capacity on an Equal Basis for All 1.7 Conclusion References Chapter 2: Personhood: Perspectives from Critical Feminist, Disability and Queer Studies 2.1 Introduction 2.2 Moral and Legal Personhood 2.3 Personhood and Critical Social Theory 2.3.1 Critical Feminist Theory and Personhood 2.3.1.1 Liberal Feminism and Personhood 2.3.1.2 Relational Feminism and Personhood 2.3.1.3 Other Feminist Theories and Personhood 2.3.1.4 Application of Liberal Political Theory of Rights to Women 2.3.1.5 Right to Legal Capacity and Critical Feminist Theories of Personhood 2.3.2 Critical Disability Theory and Personhood 2.3.2.1 Exclusion from Moral Personhood of Disabled People 2.3.2.2 Interpersonal Exclusions from Personhood of Disabled People 2.3.2.3 Social Model of Disability and Personhood 2.3.2.4 Diagnosis and Its Impact on Personhood 2.3.2.5 Right to Legal Capacity and Critical Disability Theories of Personhood 2.3.3 Critical Queer Theory and Personhood 2.3.3.1 Michel Foucault and Personhood 2.3.3.2 Judith Butler and Personhood 2.3.3.3 Queer People, Liberal Political Theory, and Personhood 2.3.3.4 Right to Legal Capacity and Critical Queer Theories of Personhood 2.3.4 Conclusion on Personhood and Critical Feminist, Disability, and Queer Theory 2.4 Power and Privilege: Importance of Legal Personhood 2.5 Conclusion References Chapter 3: Gender, Disability and Decision-Making: Historical Discrimination 3.1 Introduction 3.2 Women and Decision-Making: Myth of Hysteria 3.3 Disability and Decision-Making: Myth of Incapacity 3.4 Gender Minorities and Decision-Making: Myth of Illness 3.5 Conclusion References Chapter 4: Gendered Denials: Law, Policy and Practice 4.1 Introduction 4.2 Historical Denials 4.2.1 Women: Voting, Contracting and Marriage 4.2.1.1 Voting 4.2.1.2 Contracting and Marriage 4.2.2 Disabled Women: Institutionalisation, Eugenics, and Reproductive Choice 4.2.2.1 Institutionalisation 4.2.2.2 Eugenics and Reproductive Choice 4.2.2.3 Conclusion 4.2.3 Gender Minorities: Forced Treatment and Criminalisation 4.2.3.1 Forced Treatment 4.2.3.2 Criminalisation 4.3 Modern Denials 4.3.1 Women: Immigration, Inheritance, Contracting, Reproductive Choice, and Consent to Sex 4.3.1.1 Immigration 4.3.1.2 Inheritance and Contracting 4.3.1.3 Reproductive Choice and Consent to Sex 4.3.2 Disabled Women: Guardianship, Forced Sterilisation and Consent to Sex 4.3.2.1 Guardianship and Forced Sterilisation 4.3.2.2 Consent to Sex and Intellectual Disability 4.3.2.3 Conflation of Mental and Legal Capacity in Consent to Sex Law 4.3.2.4 Non-discrimination in Legal Capacity to Consent to Sex 4.3.2.5 State Obligation to Provide Support for Consent to Sex 4.3.2.6 Legal Landscape of Denials of Capacity to Consent to Sex 4.3.2.7 Conclusion 4.3.3 Gender Minorities: Gender Recognition, Marriage, and Reproductive Choice 4.3.3.1 Gender Recognition 4.3.3.2 Marriage 4.3.3.3 Reproductive Choice 4.4 Conclusion References Chapter 5: Vulnerability Created by Legal Capacity Denials 5.1 Introduction 5.2 Vulnerability 5.3 Vulnerability as a Social Construct 5.4 Creating Vulnerability: Gender, Legal Capacity Barriers, Autonomy, and Vulnerability 5.4.1 Creating Vulnerability by Denying Reproductive and Sexual Choice of Women, Disabled Women, and Gender Minorities 5.4.1.1 Sexual Choice and Contingent Vulnerability 5.4.1.2 Abortion and Contingent Vulnerability 5.4.1.3 Forced Sterilisation and Contingent Vulnerability 5.4.1.4 Conclusion 5.4.2 Creating Vulnerability in Women, Disabled Women, and Gender Minorities Under Guardianship with Limited Decision-Making C... 5.4.3 Creating Vulnerability Through Forced Psychiatric Treatment of Women, Disabled Women, and Gender Minorities 5.4.4 Creating Vulnerability in Gender Minorities Through the Exclusionary Effect of Gender Binary Requirements 5.5 Conclusion References Chapter 6: Creating Change: Examples of Modern Reform and Recommendations 6.1 Introduction 6.2 Case Studies: Examples to Learn From 6.2.1 Peru: Guardianship Abolished 6.2.2 Ireland: Capacity to Consent to Sex 6.2.2.1 Learning from England and Wales ́ Functional Approach to Denials of Legal Capacity to Consent to Sex 6.2.2.2 Case Law in England and Wales 6.2.2.3 Reconceptualizing Capacity to Consent to Sex to Conform to Human Rights Law 6.2.2.4 A Note on State Intervention in Abusive Relationships 6.2.2.5 Current Sexual Offenses Law in Ireland and Impact on Women, Disabled Women, and Gender Minorities 6.2.3 Malta: Gender Recognition 6.3 Conclusion 6.4 Reform Recommendations References "This book explores the role of gender in the recognition of an individual's legal capacity. It discusses the meaning of the right to legal capacity and its two core elements - legal personhood and legal agency. It then analyses historical and modern denials of personhood and agency experienced by women, disabled women, and gender minorities: for example, prohibitions from voting, limitations on contracting, loss of personhood upon marriage, and gender binary requirements leading to an inability to exercise legal capacity, [among] others. Using critical feminist, disability, and queer theory, this book also offers insights into the construction of legal personhood and its role as a predictor of power and privilege. The book identifies patterns of oppression through legal capacity denial in various jurisdictions and discusses situations in which modern law continues to enforce these denials. In addition, the book presents solutions: it identifies practices to learn from in various jurisdictions around the world, including both civil law and common law jurisdictions. It also uses case studies to illustrate the ways in which existing laws, policies and practices could be reformed"--Back cover