THE NEED TO ENSURE “LEGITIMACY” DURING THE 2023 CONSTITUTIONAL PROCESS

We argue that legislators in the 2023 process continued to view legitimacy—that is, the appearance of an open, transparent process, in step with public opinion—as key to future success. Citizens and scholars have long questioned the legitimacy of Chile’s current constitution, penned under dictator Augusto Pinochet and ratified in a sham referendum in 1980. Demonstrations during the 2019 social uprising powerfully highlighted how Chile’s constitution was impeding social reforms (Heiss Reference Heiss2020).

Legislators seemed convinced in 2020 that traditional political elites could not be the sole authors of a new constitution (Piscopo and Siavelis Reference Piscopo and Siavelis2021). Civil society, academics, and lawmakers tended to view a trio of measures—low barriers to electing political independents, reserved seats for Indigenous groups, and gender parity—as tools to enhance public perceptions of the legitimacy of the 2021–22 process (Suárez-Cao Reference Suárez-Cao2021). A Cadem poll from December 18–20, 2019, showed that a whopping 88% of respondents wanted the convention to feature independents; 89% agreed that it should have reserved seats for Indigenous groups, and 92% thought that the constitutional convention should have “equal representation of men and women.” Thus, legislators concerned with public perceptions of the legitimacy of the constitutional process agreed to electoral mechanisms that enabled the unprecedented entry of independents, Indigenous groups, and women in 2021.

Two days after the draft’s defeat in the referendum, President Gabriel Boric convened all political parties represented in Congress to explore “how to continue with the constitutional process.” Maintaining an aura of legitimacy remained a dominant concern for legislators.Footnote ² Three months of negotiations culminated in the Agreement for Chile, which maintained gender parity but restricted independents’ electoral possibilities and omitted a priori reserved seats for Indigenous groups.Footnote ³ In stark contrast to the “blank slate” approach of the previous attempt, this agreement outlined 12 constitutional bases and established three bodies to write the new draft. First, a popularly elected Constitutional Council was to have 50 members, far fewer than the 155 delegates of the previous convention. The second body, an Expert Commission, comprised 24 experts designated by Congress. The third organ, the Admissibility Technical Committee, was made up of 14 jurists responsible for resolving disputes. Each of these entities was mandated to have an equal number of men and women.

Thus, party elites designed a system in which party-appointed experts would theoretically moderate citizens’ more extreme views, such as impulses to reinvent the entire political system. Experts were instructed to produce a draft text that operated within the boundaries established by the 12 constitutional bases and provided mechanisms for minorities to block proposals approved in committees from reaching the floor.

LEGISLATORS’ PERCEPTIONS OF GENDER PARITY AS A LEGITIMIZING TOOL

Why, then, did legislators deem parity to convey an aura of legitimacy to this fresh round of constitution writing? We show how party leaders, after they regained their monopoly on power over the constitutional process in the postrejection climate, had incentives to strategically use gender parity to signal legitimacy. The idea that deliberative bodies should feature an equal number of men and women arguably gained traction among elites after the 2018 resurgence of Chile’s feminist movement.Footnote ⁴ National media figures wrote columns and spoke out on news programs in favor of gender parity (Escobar Reference Escobar2022). Political leaders from the Left and the Right responded to the wave of feminist protests by publicly embracing diverse feminist ideologies and promoting gender-oriented reforms (Reyes-Housholder and Roque Reference Reyes-Housholder and Roque2019). Adherence to parity as an ideological principle has remained strong among Chile’s progressive sectors; thus, it is the staunch support of conservative women leaders that remains key to understanding its resilience.

Polls conducted in the months prior to the 2022 referendum showed that Chileans would likely reject the convention’s draft. Anticipating this outcome, a group of women legislators, mayors, and former ministers from the conservative Chile Vamos coalition wrote an open letter titled “Committed to Parity: Never again without Us Women” (Vargas Reference Vargas2022). They promised to defend gender parity in a new constitutional process should Chileans reject the draft. “Promoting the participation of women in all areas of society is not a political position; it is common sense,” the letter read. One woman senator from the Right described her support for parity and her sector’s crucial role in its resilience: “I have always been in favor of parity. If we, many women and men from our sector, had not been (in favor), parity in the Constitutional Council (of 2023) would never have happened” (personal interview #2 April 25, 2023). Here the woman senator suggests that conservatives deserved credit for ensuring the survival of gender parity.

There are various reasons why individual lawmakers supported gender parity in 2023 (personal interviews #1–3, April 21–25, 2023). However, our interviews collectively suggest that legislators viewed requirements for an equal presence of men and women constituents as a tool to convey legitimacy. A male leader in the negotiation of the Agreement for Chile told us:

These words link perceptions of the legitimacy of Chile’s constitutional process, responsible for draft a replacement for the illegitimate 1980 constitution, with gender parity. “It is related to the legitimacy of origin and with the perspectives of men and women enshrined in public decisions,” he added. Conservative male politicians in Chile in 2022, such as former minister Jaime Bellolio, also expressed support for gender parity by evoking its usefulness in modernizing the country. Just a few days before the September 2022 rejection of the draft, he previewed how the Right would continue to accept parity in a new constitutional process: “It is a civilizing advance that has to be maintained,” he said on national television (Matamala Reference Matamala2022). The term “civilizing” suggests that this leader viewed the promotion of women leaders as aligned with Chile’s cultural development goals.

Senator Ximena Rincón, a leader of the Rejection campaign, expressed her support for parity two days after the draft’s defeat at the polls. She explained in a personal interview in April 2023 how she sensed broad citizen support for gender parity, even after rechazo’s victory. Her responses also suggested that parity could help fuel socioeconomic and cultural advancements:

The staging of the Agreement for Chile announcement resulted in a backlash. The national media featured a photo of three male politicians—Senate president Álvaro Elizalde, Chamber of Deputies president Vlado Mirosevic, and former Chamber of Deputies president Raúl Soto—holding up the Agreement for Chile. Although the agreement did include gender parity, some scrutinized the optics of the photo. CNN journalist Mónica Rincón tweeted this about Las Últimas Noticias’s front page: “Three problems with this front page. That the medium only asked men. That in the photo there are only men, without the women who negotiated. And that the three powers of the State are headed by men (the legislative in both its chambers). Is the importance of parity understood? (Rincón, Mónica. Twitter post. @tv_monica December 13, 2022. https://twitter.com/tv_monica/status/1602667761725046785). This backlash showed the potential for criticism if legislators did not implement parity commitments. Only a constitutional process characterized by parity would be viewed as worthwhile.

We argue that legislators’ calculations that parity offered a low-cost option to foster perceptions of legitimacy help explain its resilience. Neither political elites, observers, nor the citizenry identified parity as the cause or even a contributing factor to the failure of the 2022 constitutional draft; they singled out other aspects of that process as causing the popular rejection. Party elites doubted the efficacy of past efforts to bolster the legitimacy of the constitutional process by opening the door for party-less constituent candidates. Scholarly interpretations that excessive citizen participation, the oversized influence of independents, and the public writing process led to the rejection of the draft supported the decision to opt for an elite-centered approach to the 2023 constitution-writing. In particular, the absence of political parties in articulating and channeling constitutional discussions because of the dominance of “party-less independents” was cited as one of the main reasons for the referendum result (Larrain, Negretto, and Voigt Reference Larrain, Negretto and Voigt2023).

Lawmakers also analyzed multiple national polls, which suggested that parity was not a liability in the upcoming attempt to rewrite the constitution. Surveys from the Centro de Estudios Públicos showed that the main reasons why Chileans rejected the 2022 draft constitution were the way the constitutional delegates worked (31%), its divisive nature (26%), and the plurinational state (14%). Women’s rights were ranked low on the list of reasons; only 5% saw it as significant (Centro de Estudios Públicos Reference de Estudios Públicos2022).

A Cadem poll conducted from September 13–15, 2022, asked respondents whether they agreed or disagreed with a strong gender parity statement; it found that 45% “prefer that gender parity be required for all positions in state organisms,” versus 55%, who said, “I prefer that gender parity not be obligated for all positions in state organisms.” The phrasing of the statement means that these answers could reflect a range of opinions concerning parity, from support for parity in elected positions to outright rejection. Despite this ambiguity, other results concerning support for plurinationality, a major demand from Indigenous constituents, suggest it has far less support: only 24% agreed with this statement: “It is preferable to declare Chile as a Plurinational State, where in the same State different nations live in the same territory.” Finally, a Tu Influyes poll from December 2022 showed that 59% of Chileans supported the idea that “all the organs (experts, elected and committee) feature parity,” whereas just 29% did not support the idea and 12% did not know. Public opinion polls helped inform legislators about which features of the 2021–22 process to maintain and which to modify.

Legislators, according to these indicators, had reason to view parity as a popular feature of the next constitutional process. One woman senator from the Right summarized public support for parity in the 2023 constitutional process: “Without a doubt, in the process [parity] was well-evaluated in a historic instance whose mandate was to write a new Constitution that had to be half men and half women. That was valued” (personal interview #2). To sum up, legislators tended to view gender parity as beneficial in conferring legitimacy and feared public disapproval for not maintaining gender parity. At the same time, gender parity was relatively low cost: unlike reserved seats and independent lists, gender parity applied within party lists; therefore, it was less threatening party leaders’ control.

CONCLUSIONS AND LESSONS

We argue here that Chilean legislators maintained gender parity at least in part because they viewed it as a low-cost instrument to legitimize the new elite-controlled constitutional process. Put differently, lawmakers reasoned that the public would prefer a set of constitution writers composed of an equal number of women and men to a majority-male set of writers. Counterfactual thinking further clarifies our argument: had public opinion and the media not reinforced the link between parity and legitimacy, then legislators likely would have scraped this innovation from the failed convention.

We are not asserting that all politicians who voted for gender parity did so for insincere reasons: some legislators’ feminist declarations could be genuine. We instead contend that legislators’ awareness of how parity could enhance public support for a precarious constitutional process influenced their decision making. The shared elite idea that parity could enhance legitimacy helps explain why legislators approved gender parity for the 2023 process much more quickly than they had in 2020.

Our interpretation of the Chilean case aligns with previous comparative scholarship, which has often portrayed national legislators as strategically calculating costs and benefits when deciding whether to back gender quotas (Piscopo Reference Piscopo2016; Towns Reference Towns2012). This article reveals how decision makers perceived there to be legitimacy-based incentives to adopt parity during an extraordinary constitutional moment.

Chile’s recent experiences raise concerns about gender-washing. For example, its Expert Commission, comprised equally of men and women designated by political parties, included weak gender parity norms in the new constitutional draft. Constitutional delegates, at the time of this article’s writing, aim to dismantle the few gender equality provisions advanced by the Expert Commission and further restrict women’s rights. Future research on the Chilean case should examine the strategic uses of women’s descriptive representation to the detriment of women’s substantive interests.