Helen Irving (The University of Sydney Law School) has posted Constitutional Identity Theory and Gender: The Missing Referent on SSRN. Here is the abstract:
This paper examines constitutional identity theory (of the constitutional subject) and argues that the theory is flawed or incomplete to the extent that it treats the reconciliation between disruptive non-constitutional identities and liberal constitutionalism in pluralist societies as its primary object, and assumes a correspondingly tendentious definition of pluralism. This approach, I argue, sidelines or discounts non-disruptive classes of constitutional subject and, in particular, treats gender as an irrelevant difference. The paper explores these issues with a focus on Michel Rosenfeld’s theory of constitutional identity. Its concern is not whether Rosenfeld’s theory is or is not, in itself, consistent or coherent (and it does not attempt to discuss all dimensions of his theory). It is, rather, the manner in which difference is identified and accorded relevance in a particular branch of constitutional identity theory more broadly, including what ‘pluralism’ is taken to mean as its point of departure.