Parity constitutionalism

Abstract In 2021, the Chilean Convention became the first constitution-making body with gender parity. However, the draft – which reflected many gender-related norms – was rejected by 61.89 per cent of voters in the exit plebiscite of 2022. In this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity’s promise may fail to materialize. We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020–22 Chilean constitution-making process.


I. Introduction
'Never again without us' the Chilean feminist movement demanded of the constitutionmaking process, and in 2021 the Chilean Constitutional Convention became the first constitution-making body with gender parity.However, the draftwhich reflected many gender-related normswas rejected by 61.89 per cent of voters in the exit plebiscite of 2022. 1 And while a majority of female voters voted to reject the draft, they appeared to do so at consistently lower rates than male voters in the equivalent age bracket (the only exception being voters under 34 years). 2n this article, we argue that although parity constitutionalism has promise and, in the Chilean case, was linked to gender-related outcomes in the constitutional text, parity's promise may fail to materialize.In the context of formal constitution-making, parity faces distinctive challenges: even if parity results in women's descriptive representation in constitution-making bodies, which later translates to gender-related outcomes in the constitutional draft, the draft might fail to gain widespread support and, in that sense, fail to be substantively representative of the wider population, including women.If parity is divorced from political parties and norms of electoral competition, it may exacerbate the tendency for constitution-making efforts to adopt 'utopian' constitutional approaches, which cannot command support from a majority of voters. 3We thus caution against a naïve view of parity constitutionalism as one of the key legacies of the 2020-22 Chilean constitution-making process.Parity constitutionalism may be here to stay, and in ways that are good for gender justice.But it also requires refining in terms of its relationship with party structures and its ability to contribute to democratic compromises if it is to advance the goals of successful democratic constitutional change.
The remainder of the article proceeds as follows.Part II discusses some rationales for parity constitutionalism and its connection to notions of representation.Part III explores the promise and pitfalls of parity constitutionalism, both from a gender equality and democratic constitutional reform perspective.Part IV illustrates these benefits and dangers by reference to the 2020-22 Chilean constitutional process.Part V concludes the discussion.

II. Parity, democracy and constitutionalism
Women in most democracies are roughly half of the electorate,4 and they are equallyand sometimes disproportionatelyaffected by certain governmental decisions.Concerns for gender justice have thus recently manifested in concerns regarding women's representation in officethat is, descriptive representationwhich is thought to translate into women's substantive representationthe representation of women's interests. 5escriptive representation does not always result in substantive representation.Feminism is a contested political project and disagreement is both external (i.e.anti-feminist projects) and internal to feminism (i.e.disagreements within feminism regarding the role and place of women's agency, particularly in the context of sex and sexual violence, and decisions about care and reproduction).6Thus, some elected women might reject the idea that they have any special responsibility for advancing women's interests, while others may be chosen as candidates precisely because of their capacity to legitimize policies that undermine women's interests. 7Further, some studies show that, with a 'critical mass', female legislators speak less than when they are in a clearer minority 8 or might face backlash. 9Finally, women disagree about what women's interests area disagreement that has become a key methodological issue in defining women's interests and assessing whether women representatives are more likely to advance them. 10onetheless, the evidence suggests that women's descriptive representation can increase their substantive representation,11 and having a critical mass of women in legislative bodies tends to promote increased spending on certain areas, in ways that are non-linearthat is, that go beyond the proportionate increase to be expected from small increases in female legislative representation.12Due to the relationship between descriptive and substantive representation, and other, gender justice-related reasons, women's descriptive under-representation in most legislatures worldwide seems particularly troubling.Today, only 26 per cent of legislators worldwide are women13 and only five countries have female representation at or over 50 per cent in the national legislature. 14any countries have responded to this gender representation gap by adopting measures to increase female political participation.Some interventions aim to encourage women to run for office; others focus on reserved seats, or gender targets or quotas (mandatory or otherwise) within political parties or in the slates of candidates.And some countries have gradually shifted from gender quotas to actual gender parity in legislative representation.
The concept of 'parity democracy' was first introduced in Europe, in 1992, in a declaration at the European Summit of Women in Power calling for gender 'parity in the representation and the administration of Nations'. 15Since then, it has also gained traction in diverse national contexts.In Latin America and Europe, there has been a notable increase in support for gender parity requirements as compared with (minority) gender quotas for women in electoral politics. 16These trends have also been echoed in processes of democratic constitution-making, particularly in elected constitution-making bodies.For example, in 2011 the body responsible for drafting the rules for the election of the Tunisian Constituent Assembly adopted a requirement of 'vertical parity', which ultimately led to a body with 31 per cent female representation. 17ender parity in the composition of Chile's Constitutional Convention, however, was historically unprecedented, both for a constitution-making body and for Chilean elected organs, where women are still under-represented in Congress 18 and, until recently, fell below the regional average of 28.4 per cent, 19 even after the introduction of gender quotas in 2015. 20Yet, in March 2020, the Senate voted overwhelmingly in favor of a Bill that ensured gender parity in the composition of the constitutional assembly. 21The measure was the result of a wide political consensus, 22 as well as the feminist movement's relevance in social protests since 2018, coordination among women from across the political spectrum, with women organizations from civil society and women academics, 23 and political leadership by some key women. 24Further, public opinion remained overwhelmingly in favour of gender parity in the constitution-making process. 25The election of the convencionales took place in 2021, resulting in a Constitutional Convention composed of 77 women and 78 men.
The Chilean bill, and subsequent election, seems to have heralded a new model of democratic constitution-making, defined by a commitment to gender parity in the constitution-making process.We call this a model of 'parity constitutionalism'.
Parity constitutionalism can vary in scope and breadth.For instance, it may apply only to the delegates seated in a plenary constitution-making body, or to the body as a whole and various other sub-organs involved in constitutional drafting, including technical and subject-matter committees.It may apply only to formal processes of constitutional drafting and amendment, or extend to other institutional contextsincluding courts, legislatures and 'fourth branch' institutionsinvolved in processes of small-c constitutional change and development.One model could be considered narrow or 'shallow' in nature, the other broader or 'deeper' in scope.Regardless of these differences in scope, parity constitutionalism consists of two fundamental ideas: women and men should have 18  25 P Morales and S Valenzuela, 'Nunca Más Sin Nosotras: La Importancia De La Paridad En El Proceso Constituyente', La Tercera, 30 September 2020, available at <https://www.latercera.com/paula/nunca-massin-nosotras-la-importancia-de-la-paridad-en-el-proceso-constituyente>.
an equal share of political power; and such equality should begin with the democratic constitution-making process, through mandatory norms of equal gender representation among constitution-makers.

III. Parity constitutionalism: Promise and pitfalls
Parity constitutionalism has several advantages, although they may vary in strength depending on the context and scope of the model.
Gender representation gaps have different (and potentially overlapping) causes.Parity norms can address some of those causes, particularly those regarding gendered attitudes and biases toward the 'suitability' of female as opposed to male candidates for election, gendered networks and structures within political parties, and gendered violence and harassment.
Numerous studies find that parity requirements help to challenge the social norms and attitudes of what 'legislators' or politicians look and sound like, or the attributes that make a person suited to electoral office. 26They likewise show that electoral quotas can help reshape internal party norms and networks of power, and even force parties to change and expand their approaches to recruiting candidates. 27s noted above, there is also evidence suggesting a correlation between a critical mass of women in parliament and a gender-sensitive approach to policy-making, including attention to areas such as health and educationand this may extend to policies designed to accommodate care responsibilities, both generally and in the parliament itself. 28There is also evidence that having a critical mass of women in any workplace is likely to reduce the risk of gendered forms of harassment and violence. 29hese effects might also materialize in constitution-making processes.In this context, parity constitutionalism might have an important role to play in disrupting gendered notions about who are suitable constitution-makers within a context often understood as the ultimate exercise of democratic constituent power.Further, constitution-making often involves long hours and late nights, which might pose risks of harassment and challenges in combining representation and care, hence making changes arising from a critical mass even more important.
Finally, paritythat is, descriptive representationmight also lead to women's substantive representation in the constitutional draft, and possibly also its implementation.That is, parity in drafting may be associated with 'deeper' forms of parity constitutionalism, which involve enshrining commitments to parity in the structure of a range of institutions created under the constitution.
There are, however, also pitfalls to a model of parity constitutionalism.Some of these challenges are common to legislative settings.First, as noted previously, descriptive representation does not always translate into substantive representation; moreover, there is no agreement regarding what women's interests are.If one is committed to a constitutional feminist projectthat is, to a particular conceptualization of women's intereststhe risks of failure are substantial: there is not only a danger that increases in descriptive representation will not translate into substantive representation, but also that descriptive representation's weaponization by opponents of feminism will occur, so that high-profile women are appointed with the express aim of eroding gender equality gains, or even democracy itself. 30econd, how should we think about commitments to parity, given an intersectional feminist approach that is sensitive to the interests of women from different backgrounds?Clearly, it is insufficient for the democratic legitimacy of a constitution-making body to have a critical mass of women.It must include sufficient numbers of women with diverse backgrounds and experiences, including experiences of racial and economic marginalization, and representatives with diverse sexual and gender identities.Commitments to gender parity do not always go hand in hand with this kind of broader, intersectional commitment to inclusion and representationespecially the representation of nonbinary individuals. 31ome challenges, however, are more distinctive to constitution-making processes.It is one thing for a constitutional draft to be feminist in natureas we suggest the Chilean draft wasbut quite another for a draft to become binding law, be implemented or gain majoritarian approval.
Formal constitutional change usually happens within certain windows, and if a window is lost, it might take a long time for change to materialize.Increasingly, democratic constitutional change also requires that voters approve of the draft at a national plebiscite or referendum. 32If parity results or encourages a draft that goes beyond, in terms of political and social change, what a majority of voters are willing to endorse, parity may ultimately contribute to a form of failed democratic constitutional reform. 33.Parity Constitutionalism in Chile Some of these benefits and pitfalls can be observed in the Chilean constitution-making process.In this context, parity constitutionalism resulted in a gender-sensitive draft, which arguably reflected intersectional perspectives as well as the demands of various Chilean feminist organizations. 34irst, the draft consistently employed inclusive language.Second, the basis of the constitutional order included the principles of gender equality and 'gender-parity democracy', as well as parity requirements in the composition of certain state organs. 35Third, the draft included the need for a 'gender perspective' (without defining it) and/or an 'intersectional approach' (understood as cases in which multiple categories of subordination overlap) 36 in provisions related to political participation and institutional design 37 and fundamental rights. 38Particularly notable is the requirement of a gender perspective and an intersectional approach in the exercise of the judicial function and the training of justice administration officials. 39Fourth, the draft's lengthy list of constitutional rights included several gender-related rights, such as gender equality and non-discrimination, 40 reproductive and sexual rights, 41 and rights related to care-work. 42Fifth, the draft evidenced a commitment to eradicate gender violence, explicitly mentioned as a right to live free of violence at the hands of the state or private parties, 43 and addressed in several provisions concerning the scope of fundamental rights and the role and duties of the state and its organs. 44Finally, the draft adopted a range of structural features that embodied norms of deep paritythat is, it incorporated the promotion or requirement of gender parity in various future political bodies, including the legislative, 45 the decision-making instances of the police and armed forces, 46 the judiciary, 47 autonomous constitutional organs 48 and a new Constituent Assembly in the event of constitutional change or amendment, 49 among others. 50hese results suggest that parity constitutionalismthat is, descriptive representation resulted in substantive representation of women's interests.In fact, a recent study on gender parity's impact in the voting results of the Convention concluded that although both women and men were more loyal to their political conglomerates than to their gender, women were more loyal to their gender than men, particularly in themes related to gender, culture and science, and political systems. 51The study also suggests that voting outcomes would have been different without gender parity, with approximately 28 rules not being approved in that scenario, including those related to Indigenous peoples (which included the pluri-national nature of the state) 52 and the biggest changes in environment and development model, gender, decentralization and form of state. 53Of course, like many in its field, this study raises the question of what it means for someone to be 'loyal to their gender'or, in other words, what counts as women's interests.
At the same time, one might also ask whether gender parity contributed to the 'utopian' nature of the proposed constitutional draft, and hence its ultimate defeat at the 2022 constitutional referendum. 54While convention delegates often represent more polarized views than the median voter, this may be especially true for delegates without a party affiliation or elected as part of reserved seats.Additionally, 65.1 per cent of the convencionales had a distinctly 'feminist' profile, 55 which suggests that parity may have contributed to shifting the median convention delegate further to the left, compared with the median voter in Chile. 56andau, for example, suggests that some of the Constitution's gender-related provisions, like those on reproductive rights and voluntary termination of pregnancy, might have played a 'single issue' role in voting decisions. 57A 2021 poll among Chileans showed that although 73 per cent of respondents were in favour of abortion, only 41 per cent thought it should be completely free, 58 whereas the constitutional draft put to Chilean voters contained no clear limitation on reproductive rights or the voluntary termination of pregnancy. 59And the pluri-national nature of the state, which generated considerable backlash from the electorate, was also a demand of feminist organizations. 60he independent nature of many convencionales might have also made it less likely that they would be willing, or able, to compromise on a text that could gain support from ordinary citizens. 61Independent, non-aligned women (and men) constitution-makers may have fewer incentives to engage in compromise than women and men counterparts who are subject to party discipline.Independents do not have the same incentives to follow majority attitudes and may see a decision to do so as departing from their mandate as independents elected to represent a particular community of interest.
Given these factors, perhaps it was unsurprising that 61.89 per cent of Chilean voters rejected the constitutional draft in the exit plebiscite. 62Thus, although parity constitutionalism has many advantages, particularly in challenging gender stereotypes about who can be constitution-makers and may result in a 'feminist' draft, the draft might still fail to garner widespread popular support.That is, descriptive representation might not result in effective substantive representation of all womenand of a majority of voters.

V. Conclusion
Parity constitutionalism is one of the most important legacies of the 2020-22 Chilean constitution-making process.It promised to introduce new perspectives of constitutionmaking and makers and to herald a gender-sensitive draft.
Even as Chile has grappled with the constitutional draft's defeat, it has begun to embark on a new constitutional process, led by the political parties.One of the striking features of this new process, and notable carry-over from the 2020-22 constitutionmaking process, is that it continues the newfound commitment to parity constitutionalism, at least in the organs in charge of drafting, discussing and approving the constitutional draft. 63t the same time, parity constitutionalism without well-functioning and representative political parties and responsiveness to the views of the median voter 64 may lead to limited substantive change.It may contribute to a form of 'utopian' constitutional politics, whereby constitution-makers adopt a draft that is seen as too extreme to command the support of a democratic majority.Democratic constitutional reform might therefore be stillborn.