Berta Esperanza Hernández-Truyol
Excerpted from: Latinas, Culture and Human
Rights: a Model for Making Change, Saving Soul, Women's Rights Law
Reporter 21-43, 22-30 (Summer/Fall 2001) (189 footnotes)
The issues of race, gender, and culture are salient considerations in
exploring the human rights dimension to an analysis of Latinas' location
in societies and in using the model to advance that position. Latinas,
inside and outside the United States, must operate within a complex
system of culturally derived racialization and sexualization.
Within majority communities, Latinas are racial 'others,' subordinated
because their racialized ethnic
origins separate them from the normative standards of personhood.
Moreover, within their own communities, whether inside or outside the
United States, Latinas become second class because of their sex, a
deeply-imbedded cultural trope that is definitional of women's worth and
particularized roles. Both locally and abroad, women's distance from
normal can be exacerbated if they are racial (and sexual) others within
their own communities.
An interrogation of the possible interventions that human rights
norms can afford Latinas, requires a scrutinization of the available
instruments that afford useful strategies for the progressive
development of women in the Americas. Specifically, a consideration of
the utility of the International Convention on the Elimination of all
Forms of Racial Discrimination (CERD),
the Convention on the Elimination of all Forms of Discrimination Against
Women (CEDAW), and various regional
documents that address issues pertinent to women in the Americas is
A. Varied Conceptions of Race, Ethnicity, and National Origin
An examination of CERD reveals some striking features. Although from
its name this is anything but apparent, CERD is not solely a race
convention; indeed, it provides:
In this Convention, the term 'racial discrimination' shall mean any
distinction, exclusion, restriction or preference based on race, colour,
descent, or national or ethnic
origin which has the purpose or effect of nullifying or impairing the
recognition, enjoyment or exercise, on an equal footing, of human rights
and fundamental freedoms in the political, economic, social, cultural or
any other field of public life.
This definition both presents and depicts the problem in talking
about race and ethnicity: CERD defines ethnicity as, and therefore
conflates it with, race.
However, in most places in the Americas, race and ethnicity are
different classifications. *23 To be
sure, there can exist inter-ethnic racial conflicts and inter-racial
ethnic conflicts, which are all but obscured if race and ethnicity are
rendered synonymous categories. Beyond
collapsing race and ethnicity, CERD conflates race with color, descent,
and national origin. These, too, are
matters related to, indeed interdependent with, but separate from race
Such racialization-of-differences paradigm is the predominant view of
difference within the United States - where national and ethnic
identities are considered racial differences.
The translation of this local idiosyncrasy to a global definition
unearths the hegemonic underpinnings of international norms. Moreover,
this inaccurate definition, disseminated and adopted world-wide as law,
reinforces a one-axis approach to analysis of identity rather than the
more accurate multidimensionality perspective.
Indeed, a multidimensionality perspective is much more realistic in the
context of the human condition and our daily existence.
Beyond the incoherent definition of race in CERD, it is also
important to understand that different cultural groups have different
understandings of the concept of race. One brief but poignant example
effectively crystallizes the divergent dominant and silenced social
constructions of race. Inherently, the Latina/o and the United States
constructions of race "are polar opposites."
Indeed, in the United States, the central, essential, axiomatic paradigm
that courts religiously accept, believe in,and impose is the 'one drop'
rule. This model dictates that,
regardless of phenotype, one drop of black blood makes a person black.
Under this logic, there is no amount of 'whitening' that can render one
white, normatively speaking. As Gunnar Myrdal has articulately
The 'Negro race' is defined in America by the white people. It is
defined in terms of parentage. Everybody having a known trace of Negro
blood in his veins - no matter how far back it was acquired - is
classified as a Negro. No amount of white ancestry, except one hundred
percent, will permit entrance to the white race.
To be sure, case law adopts this approach:
'[W]hite persons' within the meaning of the statute are members of
the Caucasian race, as Caucasian is defined in the understanding of the
mass of men. . . . The term excludes
. . . American Indians. . . . Nor is the range of the exclusion limited
to persons of the full blood. . . . [M]en are not white if the strain of
colored blood in them is a half or a quarter, or, not improbably, even
less, the governing test always . . . being that of common
In stark contrast to this historically derived United States social
construction of race is the caribeña/o social construction that
subscribes to the notion of blanqueamiento (whitening) - ironically a
'one drop' rule of sorts. Pursuant to
this version, however, the paradigm is reversed: 'one drop of white
blood starts you on the [desirable] route to . . . whiteness.'
It is noteworthy, however, that while Latinas/os and Anglas/os differ
on their respective constructions of race, they agree on the favored
race: white. From the Latina/o lens, this represents the colonized
internalization "of the colonizer's predilection" for whiteness as
reflected in the Spaniards' carry- over to the New World *24 of their
racial biases as represented by the "expulsion of Jews and Arabs from
Spain." During colonization, to ensure
'purity of blood,' the Spaniards established a complex system of racial
categorizations that included the prohibition of public office holders
from having a 'taint of Indian, Jewish, or Arabic blood."
These categorizations survive today, albeit in an informal fashion, in
the South, Central, Latin Americas,
and the caribe and form the basis of unstated, buried, complex forms of
racisms that while rather different from those existing in the United
States nevertheless prevail and pervade all social locations.
These differences in social construction of race/ethnicity between
the majority and Latinas/os result in peculiar outcomes that are only
explicable by the dramatically divergent cultural racial perspectives.
In fact, statistical reports reveal that approximately 95% of Latinas/os
identify themselves as white notwithstanding the 'fact [that] most
[Latinas/os] [are] racially mixed, including combinations of European
White, African Black, and American Indian . . . .'
Contrasted to this Latina/o self-identification, if one considers the
United States construction of race, it is an impossibility for 95% of
Latinas/os to be classified as white. Nevertheless, this is the Latinas/os'
Significantly, international human rights norms which protect against
discrimination on the bases of 'race, colour, sex, language, religion,
political or other opinion, national or social origin, property, birth
or other status' should easily be able to negotiate racial and ethnic
paradigms that differ from each other based on cultural perceptions.
However, CERD's version, by collapsing myriad different categories into
'race' appears to impose one particular racial interpretation - one that
comports to the dominant view within the United States.
The different bases and
histories of racisms, as well as the different forms in which
racial/ethnic prejudice manifests itself in different societies, suggest
that it would be appropriate first to deconstruct and then to
reconstruct the definition of racial discrimination contained in CERD.
This would allow inquiries that can lead to understandings of their
origins and current manifestations of socialized views in diverse
cultural settings. Indeed, a reconstructed paradigm that allows global
discourses across cultures would embrace different peoples' varied
realities and would permit the attainment of better human understandings
and harmony. Only then will equality be attainable. To be sure, only
such process will permit the eradication of the ethnic and racial
subordination that Latinas/os experience within the United States, and
the gender based subordination Latinas experience within their own
communities - both within and outside of the borderlands of the United
Thus, as a beginning point to urge a human rights model for progress
for Latinas in the Americas, we need to re-imagine CERD in a global
fashion. The covenant must not only continue to protect Latinas against
discrimination on the basis of race, but it also must protect the other
covered categories as phenomena and possible sites of oppressions that
are different from, or simply confounded by, race.
For all Latinas/os, regardless of whether they are raised within or
outside the United States fronteras,
their identity narratives are "based upon [their] ethnic/national
However, while "[f]or the Latinas/os outside the United States, this is
the dominant" 'normative' paradigm, for those *25 raised within the
United States this paradigm loses normativity as it is subordinated to
the United States' dominant racial paradigms.
Thus the serendipitous geographic location of Latinas/os defines their
racial/ethnic self-identification as valid or aberrant. The instruments
that we use to protect these multiple interdependent and indivisible
categories, as well as the interpretive process in their application,
need the fluidity and flexibility not to essentialize and to permit the
mapping of these different geographies regardless of location. Indeed,
the documents need to validate, rather than negate, multicultural
B. The Omission of Sex as an Element of Discrimination
Another reality is that CERD does not at all consider sex in the
context of racial discrimination. This observation regards both race and
issues of sex/gender. Indeed, CERD's preamble is a prime example of why
we have to insist upon a new construction of these documents that
consciously and methodically considers sex. In its preamble, the Race
Convention makes reference to the non-discrimination principles of the
United Nations' Charter as well as
the Universal Declaration, both of which
include sex. Yet, CERD then continues by providing for the entitlement
of rights and freedoms therein 'without distinction of any kind, in
particular as to race, colour, or national origin'
excluding sex. This is both significant and tragic because there are
documented gendered dimensions of racial discriminations.
It is important to explore both the successes of international
instruments as tools for women's progress and emancipation as well as
the erasure of sex from both international and regional instruments,
even in contexts that particularly affect women. It also is necessary to
addresses the inescapable gendered dimensions ofracial discrimination -
particularly a definition that conflates ethnicity, descent, national
and ethnic origin. For example, it is necessary to explore the complex
nature of cultural protections to recognize that culture can be both a
tool of the oppressor to decimate tradition and a weapon of tradition to
Sadly, our world is replete with present day examples of gendered
tragedies - from honor killings in India
and Brazil, to de jure
disenfranchisement of women in some states
and de facto denial of suffrage to the poor in virtually every state;
from segregation (as varied as the Taliban's assault on women in
Afghanistan, job apartheid worldwide,
and the Black/White wealth disparities in the
to blatant sex *26 and gender discrimination and stereotyping; from
physical violence to economic assaults; from rape for ethnic cleansing
to rape for sport.
In reviewing the realities of women's lives worldwide in the context
of international human rights, two distressing facts surface. First, the
rules are, at best, imperfect and, at worst, venal in effecting women's
exclusion - silencing women's voices, rendering women invisible,
relegating women to second-class citizenship.
Second, women simply do not universally enjoy human rights, as the
examples above demonstrate.
To be sure, this is as true in the West as in the East; in the North
as in the South. Regardless of the indicators used - employment,
economics, education, personal autonomy, political participation,
health, or personal security (meaning freedom from all types of
violence), all concerns purportedly protected by international human
rights documents - women remain a subordinated class.
Notwithstanding our legal rights, 'the universal [reality] is that women
are routinely subjected to torture, starvation, terrorism, humiliation,
mutilation, rape, . . . health risks [(maternity and otherwise
related)], economic duress, and sexual exploitation, simply because of
[our] sex.' Our ethnicity, color, race,
and national or social origins are often aggravating factors.
It is significant that women have made phenomenal strides in crossing
race, color, class, culture,
religion, and language borderlands in order to promote and protect
women's rights and address their concerns. At the 1993 Human Rights
Conference in Austria, women from all walks of life united to put women
at the center of a human rights meeting that originally did not even
include women in its agenda. An exciting
momentum was created that could not be stopped and women from all
corners of the world continued this gender-based coalition in Cairo, Rio
de Janeiro, Vienna, and Beijing.
A great achievement in promoting the full citizenship of women is
CEDAW, which by focusing on all ranges of gender issues - from the
public to the private, from the economic to the cultural, from the
social to the political, from the family to the government - not only
recognizes the need for, but also reinforces, the indivisibility
construct. CEDAW embraces women as the
complex, multidimensional beings they are. It takes a holistic approach
towards women from all walks of life attaining full personhood by
recognizing the importance not only of civil and political rights but
also of social, economic, cultural, and solidarity rights.
This treaty, along with other gender specific documents
and perspectives recently embraced by the global community as well as
the recognition of the need for gender perspectives in general documents
(such as the International Criminal Court statute), are (can be) the
foundation for making women's equality an accessible reality.
Regrettably, however, CEDAW's failing is that it does not integrate
race into its gender-centered construct, a vacuum that parallels *27 the
failure of CERD to integrate gender into race-centered construct.
These realities reflect the urgent need to restructure and
reinvigorate the human rights vision by making interdependence and
indivisibility an actuality in human rights analysis and in all human
rights documents. There are several examples of locations where the
interdependence focus would enrich the discourses. For instance, in
Article 20, the ICCPR provides that '[a]ny advocacy of national, racial
or religious hatred that constitutes incitement to discrimination,
hostility or violence shall be prohibited by law.'
However, Article 20 does not include a prohibition against incitement to
discrimination or violence on the grounds of sex, although sex is one of
the categories in the general anti-discrimination clause as well as a
basis upon which much violence is experienced.
Similarly, it is noteworthy that article 13 of the Economic Covenant
which provides that 'education shall be directed to the full development
of the human personality and the sense of its dignity, and shall
strengthen the respect for human rights and fundamental freedoms . . .
[and] shall enable all persons to participate effectively in a free
society, promote understanding, tolerance and friendship among all
nations and all racial, ethnic or religious groups. . . ' omits sex from
the specifically enumerated grounds for promotion of tolerance through
education. Significantly, the need for
better educational opportunities for
women and female children as a means of attaining equality is emphasized
in the documents that emerged from the Vienna,
and Beijing conferences.
Regional documents are similarly flawed. The American Convention
(Article 13(5)) has a provision almost identical to the above-described
Article 20 of the ICCPR. Additionally,
the African Charter excludes sex from its Article 12(5) prohibition
against mass expulsions, a gendered exclusion that is particularly
tragic because women and their children comprise 70-80% of the world's
So, while in theory international and regional documents, without
exception, include non-discrimination principles, including sex, at
their core, sex is frequently forgotten. This is of particular concern
to women of color whose multidimensionality crosses the borders of sex,
race, ethnicity, and national origin on a daily basis.
C. The Creation of a Gendered Underclass
Of particular concern to women of the Americas are the normative
gendered cultural standards that conspire with sex to create a gendered
underclass - a group of olvidadas. To be sure, it is not an easy task to
talk about culture when the group being scrutinized is one as diverse as
Latinas/os. Indeed, this group has
internally distinct and varied languages, migration,
education, emancipation, and political histories.
'Roots within the territory now known *28 as the United States are
varied, the language of home is not easily predictable, racial
composition is best described as mestizaje
- [although] within the U.S. borderlands Latinas/os cannot be white
because they are Latina/o.'
Yet, while recognizing the diversities that exist between and among
the panethnic groups collectively catalogued under the umbrella of the
Latina/o label, it is inescapable that the group does indeed share many
cultural commonalties. Many of these converge around the importance of
family and firm notions about appropriate sex and gender roles - two
interconnected foundations of cultural oppression for Latinas.
Throughout the Americas - North, South, Central and the Caribbean -
women are considered an 'other' from the male norm.
They are constructed by the dominant sex as the second sex,
all in comparison to the created norm.
Latinas, because of cultural tropes, face additional burdens. In
North America, for normativas the axis for sex-subordination is the
isolatable single trait of sex. In terms of race, ethnicity, national
origin, and language, Anglas are the gendered reflection of the
normativo (except, of course, women who also are sexual minorities). For
women of the other Americas, the situation is more complicated because
the deployment of animus - either at home or abroad - can also be based
upon the combination of their sex and their
color, accent, appearance, ethnicity, class, and/or national origin.
This model is grounded on the cultural expectations that conspire with
gendered oppressions to create standards for and interpretations of sex
(meaning sex, gender, and sexuality) that subordinate women. Not only do
women of color experience the sexism, classism, ethnocentrism, nativism,
and racism of the majority culture, they must also contend with the
sexism, racism, and classism within their own culture. The dominant
culture's gendered borders render all women less than full citizens
simply because of their sex. The cultural gendered borders create for
women of color a gendered underclass within her own comunidad.
As an example of the impact of cultural norms on Latinas, it is
interesting to examine the role of family in defining women's location
in society. "La familia is of sacrosanct importance in the cultura
Latina. It also is the site initially
and continuously responsible for the creation, construction, and
constitution of gendered identities."
Our families operate on the extended family model in which abuelas y
abuelos are respected and revered, tías y tíos are effectively second
sets of parents, and primas/os are like additional hermanas/os. This big
tent is where we first learn about appropriate and proper conduct,
including sex roles, from several generations. These generationally
unchanging molds in turn become proof of the correctness of the point,
about our proper and befitting
places; what conduct is suitable and acceptable; and what comportments
and performances constitute cosas feas (ugly things).
Inevitably bridging the diversities among Latinas/os, these learnings
and knowledges about fitting demeanor are universally and uniformly gen-
dered and sexualized. La cultura Latina rigorously and authoritatively
defines, delineates, and enforces gender *29 identities. These fronteras
are then used as a tool of oppression and pressure to marginalize those
mujeres (andhombres) who do not conform to culturally accepted (and
acceptable) designations of gender and sex roles and norms.
Frequently, strong religious ties in many communities of color also
aggravate women's gender subordination. For example, in the cultura
Latina the Latina's identity is developed in the context of the 'ideal'
woman fabricated in the mold of the Virgin Mary, a construct called
Marianismo that glorifies Latinas as 'strong, long-suffering women who
have endured and kept la cultura Latina and the family intact.'
Marianismo is about living in the shadow of all your men - father,
boyfriend, son, husband, brother - and your family. Self-sacrifice is
lauded. (Mind you, these cultural proscriptions have broad
socio-economic consequences: Latinas are the poorest of any demographic
group in the United States.) Denial of
personhood becomes a virtue instead of a human rights violation.
D. Nuevas Teorías: Protection
from Harmful Cultural Norms
Women of the Americas provide an interesting twist to the
international universalist versus relativist debate. Women of color,
whose strongest source of support often comes from community, family,
and church are caught in the conundrum that these institutions also
dictate cultural norms that are complicit in their oppression and
subordination. Thus, ironically, the concept of culture protected in the
international sphere, can be used both to subordinate non-dominant
cultures in the name of law or to perpetuate women's subordination in
the name of cultural tradition.
In this context, our nuevas teorías must promote the concept of a
benevolent, non-discriminatory, non-subordinating respect for women
across cultures. A new paradigm, while embracing and being sensitive to
cultural differences, must simultaneously reject oppressive aspects of
culture, particularly sex-subordinating or sex-marginalizing practices
or beliefs. The project must confront both the internal and external
components of the sources of oppression for women of color.
International human rights documents provide a model for such an
approach. While treaties consistently address culture as a basis upon
which protections must be afforded, not one cites to cultura as the
grounds upon which other protected rights may be abridged. For example
CEDAW at article 2(f) mandates States Parties to 'take all appropriate
measures, including legislation, to
modify or abolish existing laws, regulations, customs and practices
which constitute discrimination against women.'
In fact, the Women's Convention goes so far as to require States Parties
take all appropriate measures . . . [t]o modify the social and
cultural patterns of conduct of men and women, with a view to achieving
the elimination of prejudices and customary and all other practices
which are based on the idea of the inferiority or the superiority of
either of the sexes or on stereotyped roles for men and women.
Another significant example of the way international instruments seek
to protect women from harmful cultural norms is found in the African
Charter on the Rights and Welfare of the African Child which expressly
balances cultural rights and pretexts to disempower or harm persons
simply because of their sex. The Charter requires member states of the
Organization of African Unity to 'abolish customs and practices harmful
to the welfare, normal growth and development of the child, and in
particular . . . those customs and practices discriminatory to the child
on the grounds of sex or other status.'
Similarly, The Convention on the Rights *30 of the Child
requires State Parties to 'take all effective and appropriate
measureswith a view to abolishing traditional practices prejudicial to
the health of children. '
These examples show that there are dire social, political, civil, and
cultural consequences to being a
woman of color. Considering the above- enumerated observations about
Latina/o cultural tropes, culture, in addition to sex and race, becomes
an important focus for a discussion of equality and human rights with
respect to women in the Americas. Human rights norms expressly protect
culture and cultural expressions as well
as equality and non- discrimination.
These protections are extended to minority cultures living within a
dominant culture as well as to cultural dissenters within their own
cultural settings. Cultural protections
are especially significant in human rights analyses because they were
crafted with the knowledge and understanding that implicitly recognizes
that ethnic minorities are particularly vulnerable to a tyrannical
majority's whims in denying rights - be this majority the so-called
normative community or the empowered within a minority community.
To be sure, such concerns and consideration should extend to all women
within any culture as well as to minority women within their minority