Tokenizing and Articulating Protection of Women in Migration Law: Strategies of Exclusion in Contemporary Europe and the Nineteenth-Century USA

Abstract

This article investigates continuities in migration law-making that claims to aim at protecting women but in effect is a tokenist strategy excluding non-Western female migrants. It shows that despite developments in the legal recognition of women’s equality, present restrictions on family reunification in Western Europe, illustrated through the EU and Danish migration laws, echo law-making in the late 19th-century US, exemplified in the process of adopting the Page Act, which also introduced stricter rules for female migrants under the stated objective of protecting women. Using the social theory of articulation, the article demonstrates how legislators continuously articulate and rearticulate the wellbeing of migrant women to legitimize discriminatory migration rules regardless of how highly women’s rights are respected in law and society. The article contributes to previous feminist scholarship in migration law by showing the continuity and intentionality of the articulative practices in law-making directed at migrant women.

Keywords

Articulation exclusion family reunification human rights migration law women’s rights

Introduction

Contemporary family reunification rules in Western Europe, exemplified in this article through the EU and Danish migration laws, might seem to have little in common with the US Page Act adopted in the late 19h century, which was notorious for excluding Chinese women from immigrating to the United States. Yet, as this article argues, this juxtaposition reveals a historical continuity between the current and historical cases of adopting laws that seek to prevent the victimization of migrant women and thereby promote their equality; and in practice function as a tokenist legislation excluding from migrating the very women that they claim to protect. The contemporary European and 19th-century US contexts have obvious differences, such as the open racism and sexism of the US legislators and the economic incentives driving US efforts to attract foreign labour. Yet, the article demonstrates many striking similarities in the mechanisms of work behind the legislation adopted in both cases. These similarities in law-making pertain to both the explicitly good intentions, the discriminatory and harmful effects and the processes of mystifying this discrepancy. The US legislation targeting Chinese immigrants is an apt choice for comparison with current European migration law-making. Firstly, because general scholarship of migration law emphasizes the continuity between late 19th-century US laws (and the subsequent case law of the US Supreme Court) and the modern, sovereignty-centred conception of migration law in traditional Western immigration states (Chetail, 2019: 46–48; Opeskin et al., 2012: 2; Plender, 1972: 51). Subsequent to the stand American lawmakers adopted toward Chinese migrants, migration control of non-emergent migrants in other Western immigration states was eventually established doctrinally (Fourlanos, 1986: 55; Jennings and Watts, 1992: 897–898) and through international and national case law (Chetail, 2016: 902) as part of ‘essentially domestic jurisdiction’ (Charter of the United Nations, Art. 2(7)) with only fragmental limits imposed by international law. Secondly, the Page Act is understood as one of the first instances of conflating control of migration with control of women’s bodies (Andrijasevic, 2009: 390; Calavita, 2006: 115) – a conflation reappearing in the current family reunification policies in the EU and Denmark.

In Denmark and other Western European states today, as well as on the EU level, a variety of rules limit the applicability of certain family relationships for family reunifications: disqualifying polygamous marriage as a ground for family reunification; raising the minimum age for spousal reunification above the national age for legal marriage; creating a legal presumption of forced marriage in certain relationship constellations. Preparatory and other policy documents suggest that the legislators intended to help combat forced marriages and thereby promote equality of the sexes by protecting women’s ability to consent. Feminist studies in migration law however point out the limits of migration law tools to do this (Conradsen and Kronborg, 2007; Kofman et al., 2013: 86). Limiting options for family reunification with the given measures in effect curtails the immigration of certain classes of migrants, particularly Muslims (Shah, 2003), but above all the women whose equality was of concern to the legislators (Case Study 1). Moreover, the measures adopted do not result in meaningful consent (Stybnarova, 2020; Naqvi, 2017).

In the historical US context, the Page Act was enacted with the explicit objective of halting enforced immigration (i.e. trafficking) of Chinese women to protect them from forced prostitution; that is, exclusion was intended to protect women. As much as child and forced marriages are pressing political topics in Western Europe today, trafficking and prostitution of Chinese women were pressing topics of the time in the US. The legislation thus appeared as a positive attempt to tackle inhumane practices, just like it is presented to be today (see below). The problematic aspects of the Page Act became apparent in retrospect: most lone and lower-class married Chinese women were excluded from immigration to the USA (Case Study 2). As in the current case, the Page Act was not applied to seek consent to migration. However, the effective exclusion contributed to the political goal of limiting migration from China for economic and integration reasons (Abrams, 2005; Zhu, 2010).

Theoretical Framework

The outlined similarities between the historical US and current European case studies, including the social and political implications of the laws, are consistent with feminist research showing that victimization of women and women’s subjectivities are deeply embedded in migration law (Andrijasevic, 2009). Even current laws ostensibly designed to benefit women continue to presume that women are victims and they tend to be, through patronizing provisions, juridically deprived rather than empowered through the enforcement of rights (Bonjour and de Hart, 2013: 72; Kapur, 2012: 58–59; Kofman et al., 2013: 85).

Current feminist migration law critique focuses largely on how human rights (and the value of gender equality) are deployed and tokenized to legitimize stricter migration norms, instrumentally establish cultural differentiation and to police women’s bodies (Dauvergne, 2020: 2677; Jacobsen and Stenvoll, 2010: 277). The summoning of human rights to legitimize stricter migration control arises from a sense of moral superiority and presents migrants as a threat to society (Bonjour and de Hart, 2013: 72–73; Van Walsum, 2008: 6, 2011: 57). This scholarship points out that legislative actions pretend to give advantage to racialized women while substantially not benefiting them or even harming them. The term tokenism, which this author finds apt in describing such actions is, however, not used in any of these studies. The feminist theory of tokenism was originally developed in relation to representation of women in workplaces (Kanter, 1977). The feminist migration law scholarship further draws from theory of intersectionality analysing the intersections of gender and race discrimination (Crenshaw, 1989; Spelman, 1988; Yuval-Davis, 1997) as well as from feminist critiques of imperialism (McClintock, 1995; Mohanty, 1991; Spivak, 1988; Stoler, 2010). Their research revealed the harmful impacts of laws on the discursive constructions of reality, subjectivities and belonging and on racialized female subjects. In line with this scholarship, this article seeks to emphasize the mobilization of arguments for law-making prefacing the harmful impacts (although constructions of reality and knowledge representations are both a driver and a product of legislative action). Moreover, the present article contributes to the current feminist scholarship in migration law by showing continuities between legislation that predates and postdates the rise of human rights’ value of gender equality. In other words, many feminist migration scholars criticize the present Western European/EU law-making as cultivating discriminatory and imperialistically constructed notion of the value of gender equality, while this article shows that any core political value, irrespective of its a priori connection to women, can be mobilized to justify higher scrutiny of female migration; and then demonstrates how this is done.

The article thus focuses on the process of mobilizing these values to legitimize exclusion of women from migration as a perpetual strategy. The success of this strategy does not depend on the ideological significance of the values that lawmakers appeal to because they can articulate contextually insignificant values into new, socially appealing contexts. Through the use of the theory of articulation, the article shows how lawmakers are able to use legislation to exclude and discriminate against (and between) women and circumvent international obligations while appearing to further a general interest in enhancing women’s wellbeing and human rights.

By holding up the past as a mirror on the present, the article shows the continuity of articulating women’s wellbeing in migration law-making. Further contribution of the article is methodological and discursive, illustrating the value of the theory of articulation for revealing intentional practices of lawmakers validating discriminative laws, pursuing sectoral interests and reinforcing marginalization. The theory of articulation builds on Gramsci’s notion of common sense, a ‘way of perceiving and understanding the world that has become “common” in any given epoch’ (Gramsci, 1992: 322) and hindering ideological struggles. When common sense functions to further and sustain specific visions of leaders it operates as ‘ideological sense’. It is formed through a system of misleading articulations in which concepts are linked, not by inherent logical relations, but by connotative evocative links established by custom and opinion (Laclau, 1977: 7). These concepts display an essential paradigmatic coherence corroborating the leadership of the privileged vision (Laclau, 1977: 7). Articulation is then a form of connection that unites two different elements (e.g. marriage practices and gender equality) which can be rearticulated in different ways because they have no necessary ‘belongingness’ (Gramsci, 1992: 197; Hall, 2005: 142). It serves to legitimize deployment of power when the interests of the fundamental class are articulated to those of other social groups in order to give an impression of a collective interest (Mouffe, 2014: 10). In the historical case, economic, racist, and sexist interests were articulated to general moral interests in protecting women and devotion to progress. At the same time, national interests were articulated to interests of contractual parties to the Burlingame Treaty, under which the US had committed not to obstruct migration from China (see Case Study 2). Presently, the opposition to non-Western marriage practices is articulated to general interest in gender equality. National interests are articulated to international interests in promoting equality and protecting women as enacted in human rights treaties (Case Study 1). The notion of articulation helps break with the necessitarian and reductionist logic of those connections (Hall, 2005: 142).

The articulation within the legislative rationale also mystifies differential treatment and structural inequalities by appearing devoted to protecting the marginalized subjects (Purvis and Hunt, 1993: 497). Thus, articulation helps to legitimize the deployment of power leading to further marginalization of subjects and helps to mask these results as necessary or ensuing from a general interest. As such it works to favour some and disadvantage others in a seemingly inevitable manner (Purvis and Hunt, 1993: 478).

The historical case study shows particularly clearly that leadership does not consist in imposing a readymade worldview but articulating its actions around fundamental ideological elements of the society (Mouffe, 2014: 15). The US legislative discourse linked the notion of progress to the protection of Chinese women and then to the exclusion of Chinese immigrants; similarly, gender equality is linked to Muslim marriage practices today to exclude Muslim immigrants. The theory of articulation helps us to comprehend how women’s rights are continuously tokenized as a strategic move and mere instrumental tool in the examples of migration law-making, demonstrating at best lukewarm commitment to improving these rights. As a part of this strategy, protection of women or enhancement of gender equality are put into a new context to justify potentially controversial, discriminatory, exclusionary measures; legitimize the use of power to deprive subjects of access and entitlements; mystify the difference in treatment; claim devotion to international obligations and thereby structurally narrow their meaning.

Case Study 1: Equality of the Sexes and the Protection of Women as an Aim of Current Migration Law-Making in EU and Denmark

Below, the first case study introduces the current larger trend across jurisdictions in Western Europe and on the EU level of tightening family reunification laws reasoned with the aim to enhance gender equality. It then examines in detail the legislative reasoning for stricter family reunification rules adopted in the EU Council Directive 2003/86/EC of 22 September 2003 on the right to family reunification (Family Reunification Directive) and in the Danish Aliens’ Act. The final paragraphs of this section then briefly summarize the moments of articulation in the reviewed examples of law-making before moving to Case Study 2.

In the past two decades Western European legislators introduced stricter family reunification rules with the stated aim to protect women or promote gender equality. Law-making in family reunification area driven by these objectives appeared e.g. in the Netherlands (Bonjour and de Hart, 2013), France (Bonjour, Forthcoming), Sweden, Norway and Denmark (Bech et al., 2017; Myrdahl, 2010; Schmidt, 2011), Belgium (Miri, 2020). Therefore, it is appropriate to speak about a ‘trend’ in this direction. At the same time, migration law in Europe is not only determined by national states since large parts of it have been harmonized on the EU level. The EU has also been influential in nudging member states to certain trends of migration law-making in non-harmonized areas (Bonjour and de Hart, 2021: 6; Bonjour, 2014).

To illustrate in detail how the law-making strategy aiming to improve the condition of women with stricter reunification rules is currently employed by European legislators, this section studies the law-making rationale presented by EU and Danish legislators. Although the Danish amendments to family reunification rules follow a larger Western European trend mentioned above, Danish migration law has on multiple occasions been denoted as the strictest in Europe which makes it a particularly apt site to analyse (Conradsen and Kronborg, 2007: 229; Schmidt, 2011: 259). The EU Family Reunification Directive does not apply in Denmark (see below) which makes it even more interesting example of the larger trend as the Danish lawmakers, unlike most other legislators in the region, can push their legislative vigour beyond the EU limits of discretion. The following analysis includes preparatory works and administrative guidelines, to unfold the process of articulating and tokenizing women’s rights in the context of family reunification first on the EU level and then in Denmark.

Gender Equality and Spousal Reunification in EU Family Reunification Directive

The European Parliament published ‘Resolution on women’s immigration’ as an agenda-setting plan in 2006. This document reveals that EU lawmakers regard female migration primarily through its coercive aspect and migrant women as victims (European Parliament, 2006, at C, D, F, I). The EU Family Reunification Directive, the first EU legislation addressing family migration of third country nationals, embodies this attitude in its restrictive approach to non-Western marriages justified with the aim to protect women. It makes polygamous marriages ineffective for the purpose of family reunification: ‘where the sponsor already has a spouse living with him in the territory of a Member State, the Member State concerned shall not authorise the family reunification of a further spouse’ (EU Directive 2003/86/EC, Art. 4(4)). The preamble of the Directive (ibid., Preamble (2)) states that the rule is based on the principles recognized in Article 8 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR). By ‘recognized principles’ the text of the Directive refers to the interpretation of the ECHR by the European Court of Human Rights (ECtHR). The ECtHR has been a firm opponent to family reunifications based on polygamous marriages since the 1980s with emphasizing the role of state sovereignty and protection of traditions in the host society (No. 14501/89; No. 12139/86; No. 19628/92).

In the process of adopting the Directive, member states rejected full recognition of polygamous marriages because they aimed to prevent forced marriages (European Commission, 2008). The Directive claims that its restrictive measures against reunification of polygamous households are motivated by respect for the rights of women and children (EU Directive 2003/86/EC, Preamble (11)). EU legislators thus present the motivation for disqualifying polygamous marriages as ensuing from identifying these as forced unions and against women’s rights. The majority of member states overtook the provision on limited effectiveness of polygamous marriages for family reunification in their national migration laws under the objective of protecting women and enhancing human rights (EU External Action, 2018; European Migration Network, 2016; Minister voon Immigratie en Asiel, 2012).

However, the rule is applied so that one spouse of the sponsor is allowed to reunify in the host state while claims of additional spouses to the same sponsor are rejected, without seeking to investigate whether the marriage was forced. This application of the Directive does not verify whether the rights of the additional spouse were more effectively respected by rejection or approval of the application, for instance through providing the spouse with a procedural option to rebut the presumption of involuntary marriage. The rule thus most often harmfully impacts the women who are additional spouses (Stybnarova, 2020; Naqvi, 2017).

The EU lawmakers take a similar approach to early and forced marriages (used as a broader term encompassing polygamous, early, and sometimes arranged marriages). Although the legal marriage age in the EU member states is usually 18, the Family Reunification Directive suggests a minimum age for spousal family reunification of 21 (EU Directive 2003/86/EC, Art. 4(5)). Most member states have adopted an elevated minimum age for spousal family reunification; five use the maximum threshold of 21 (European Commission, 2019). EU bodies justify the elevated minimum age for reunification as helping to prevent forced marriages which, according to them, most commonly harm young women from ‘poor’ families with ‘ethnic’ background (European Union Agency for Fundamental Rights, 2014: 12–16). The rule is, however, applied rigidly without any interest in verifying the consent of spouses to marrying (CJEU, Case no. 338/13).

Gender Equality and Spousal Reunification in the Danish Aliens’ Act

Because Denmark does not take part in the third pillar of EU law, Justice and Home Affairs cooperation and the Family Reunification Directive does not apply there, Danish legislators have pushed their efforts to ‘counter oppression of women’ even further, setting a minimum age for reunification at 24 (Parliamentary Committee for Immigration and Integration (Udvalget for Udlændinge- og Integrationspolitik), 2002: 1392¹; Udlændingeloven, Art. 9). The Danish Aliens’ Consolidation Act (Udlændingeloven, Danish Aliens Act) places over 30 limits on reunification (Danish Aliens Act, Art. 9), several of which aim at obstructing forced marriages, with promoting gender equality stated commonly as a justification.

The preparatory documentation for legislative introduction of the minimum spousal reunification age of 24 stated that the legislative aim was to combat forced and arranged marriages (Preparatory works to novelization of the Aliens Act by law no. L 152/2001-02, p. 39). It declares that forced and arranged marriages are a reality for ‘a portion of youth with foreign background’ and argues that these marriages are opposing the value of gender equality which is ‘foundational to the Danish society’ (Preparatory works to novelization of the Aliens Act by law no. L 152/2001-02, p. 5). The law proposal also characterized the topic of forced and arranged marriages as a subject of counselling for ethnic minorities (Preparatory works to novelization of the Aliens Act by law no. L 152/2001-02, p. 43). The government claimed that interrogation of the parties to establish whether a marriage was voluntary would not sufficiently protect women forced into marriage; therefore, the legislation deliberately does not allow a general dispensation from the age rule (Preparatory works to novelization of the Aliens Act by law no. L 152/2001-02, p. 39). The law proponents argued that ‘women who are forced into marriage would not cooperate with the authorities because of the pressure at home’ as ‘90–95% of foreigners coming to the country bring a culture representing anti-democratic tendencies’ which was asserted as a reason to worry and to help young women in ethnic-background families with elevating spousal reunification age (Danish Parliament (Folketinget), 2002: 3887, 3914).

Generally, all spouses younger than 24 are therefore excluded from family reunification. However, cultures where spouses are more likely to marry younger are impacted by this rule the most (the government occasionally pointed to ‘foreign’ or ‘ethnic’ background groups as the target). The proposal conflates the notions of protecting women and pursuing gender equality. Both are articulated as opposing forced and arranged marriages; thus, broad exclusionary measures aimed at those marriages are argued to serve women’s wellbeing. Additionally, the adoption of stricter laws was argued to follow Denmark’s international legal obligations to protect human and particularly women’s rights.

Subsequently, the Danish lawmakers adopted a rule that marriages between cousins and second cousins are presumed involuntary (Bekendgørelse af udlændingloven, Art. 9(11)); in order to reunify, the spouses have to prove that the marriage was not forced. This rule was also conceived to help young women from being forced to marry. It was claimed that ‘cousin marriages occur in such cultures where the pressure on young people to marry is so enormous that they do not necessarily have a free will in choosing a spouse’ and the law proposal aimed to ‘create a society where anti-democratic and authoritarian tendencies of oppression of women cannot be maintained’ (Parliamentary Committee for Immigration and Integration (Udvalget for Udlændinge- og Integrationspolitik), 2003: 2–3). Cousin marriages were thus presented as a symbol of culture where young people have no agency in choosing a spouse, which was argued to be oppressive to, particularly, women and to threaten the Danish democracy.

The rule proposal also reflected the aim to reduce numbers of non-Western immigrants (Liversage and Rytter, 2015: 135). The proposal states that ‘the objective was to curb the volume of reunified foreigners to mitigate problems with foreigners who do not work, at the same time, the objective was to strengthen efforts to halt marriages entered involuntarily’ (Preparatory works to novelization of the Aliens Act by law no. L 6/2003-04, Presentation speech). Sectoral economic interests were thus articulated to general moral interest in protecting women: ‘especially young women with ethnic minority background are pressured by their families to marry an arranged spouse’ (Preparatory works to novelization of the Aliens Act by law no. L 6/2003-04, Presentation speech).

While this rule on cousin marriage presupposition is conceived as dispositive, the administrative practice requires spouses to provide specific evidence that their marriage was voluntary, which makes rebuttal rather demanding (Ministeriet for Flygtninge, Indvandrere og Integration, Notat om praksis efter bestemmelsen i udlændingelovens § 9 (8), 2009: 5). Judicial practice demonstrates that couples who tried to prove the voluntary nature of their marriage by alternative means were often found uncredible (Supreme Court of Denmark, U.2007.1115H, p. 1122); High Court of Western Denmark, U.2011.875V, p. 878), which also shows that the objective of the rule extends beyond verifying the (woman’s) consent to the marriage.

Although the present EU and Danish lawmakers do not specify the group targeted by the regulation, these rules directly (disqualification of polygamous marriages) or indirectly (higher age for spousal reunification) limit the effectivity of family ties legalized in non-Western countries, typically those with a majority Muslim religion and culture.² The employment of human rights in this discourse masks the cultural discrimination between immigrants (Dauvergne, 2020: 2576) whereas the lawmakers and courts maintain that the objective is general, negating allegations that the rules are culturally discriminatory (High Court for Western Denmark, U.2017.3237V, 2017).

The principles of protection of women and of equality of the sexes might appear to represent universal interests. They are undoubtedly at the core of current EU legal culture and are stipulated in international human rights treaties effective in the member states such as the ECHR (Art. 14), the UN Charter (Charter of the United Nations, Article 1), the UN International Covenant on Civil and Political Rights (Art. 2) or Convention on the Elimination of all Forms of Discrimination against Women (CEDAW). As human rights principles, equality of the sexes and respect for women are considered basic values and can be decisive in the adoption, application, and interpretation of laws.

Although vigorous dedication to promoting these values is laudable, their placement in the family reunification regulatory discourse gives them new ideological significance. The theory of articulation reveals how lawmakers present specific interests as universal and how that serves the sustainment of dominant relationships. The articulative practice of lawmakers negatively links selected marriage practices to the values of protecting women and gender equality; it justifies exclusion of predominantly Muslim women as a necessary effect of devotion to these values.

As will be shown in the final analysis of this article, the theory of articulation helps to break the seemingly necessary and universal connections between different elements and reveal their reductionist and specific nature. In the first case study the articulative practice tokenizing women’s rights is alleged mostly on the basis of the discrepancy between the legislative objective, the unseemly measures to achieve it followed by a discriminatory social impact of the laws. The necessity and universality of the connection between forced marriages and women’s rights or gender equality may be rather intuitive because these values are central to current thinking (or common sense, see above: Gramsci, 1992). As such their broad interpretation and application might appear as virtuous and dedicated rather than arbitrary and abusive. Articulation theory shows that the connection is intuitive, not necessary, and functions to further particular, rather than general, interests.

The second case study of US law-making more clearly demonstrates the intentionality of the articulative processes and their ideological function in masking and reinforcing the relationship of domination. The analysis of Congressional deliberations below maps how the formation of the regulatory objective shifted from blaming Chinese women with sexistic and racist language to portraying them as victims, in order to articulate their incoming to forced migration/labour to fit the framework of treaty obligations between the US and China.

Case Study 2: Migration Law-Making in the Nineteenth-Century USA

The second case study opens with a brief introduction to the context of Chinese immigration to the USA in the 19th century. The first Congressional regulatory restriction on immigration to the US, the Page Act, is discussed first, focusing on the aim to protect Chinese women and its tokenist character. The second subsection then addresses the language of forced labour and migration employed in the legislation in the context of the US bilateral obligations and the deliberately broad exclusionary administrative practice.

The adoption of the Page Act (1875), the Chinese Exclusion Acts (from 1882) and the subsequent body of case law of the US Supreme Court marked a turning point in both US immigration policy (Hutchinson, 1981: 12) and the general history of migration law (see Introduction). Arguably there were numerous reasons, above all openly expressed racism and economic prosperity, why the Americans became discontented with Chinese immigration (Calavita, 2000; Gyory, 1998; Lee, 2003). The case study however centralizes the discursive process of victimizing Chinese women before the adoption of the Page Act and explores how the victimization was articulated to the American idea of progress, thus harmful to the general interests of the US society. Resulting from the discursive victimization, migration of Chinese women and low-wage labourers was equated with involuntary migration and as such possible to restrict under the Burlingame Treaty.

In the 19th century, the USA was a major immigration destination, and immigrants to the West Coast came predominantly from China or Japan. At first Chinese immigrants were welcomed by local industry and politicians as a beneficial workforce for ongoing industrial projects (Wellborn, 1912–1913: 49). As the economic situation worsened, they became perceived as competition on the job market; their cultural practices were increasingly seen as alien, degrading, or threatening, underscored by openly racist assumptions and claims (Coolidge, 1909). The Californian community was particularly concerned about Chinese female prostitutes (Chan, 1991: 94).

Congress thus faced growing pressure from the West Coast to limit Chinese immigration as migration control belonged to foreign policy, exclusively in the realm of Congress. The regulatory options of the US lawmakers were limited by the Burlingame Treaty (Peace, Amity and Commerce Treaty signed at Washington July 28, 1868), which prohibited restrictions on migration between the US and China. The treaty, however, allowed adoption of protectionist measures against forced labour and human trafficking. Congress took this route to adopt the first restrictive immigration regulation to satisfy the Californian demands – the Page Act of 1875. The Act provided for exclusion of forced labour immigration, immigration for ‘lewd and immoral’ purposes from ‘Oriental countries’, ‘importation’ of women for prostitution, and immigration of criminals (the Page Act, 1875). Because the Page Act targeted dominantly Chinese women, it is argued that Chinese women, particularly prostitutes, had a pivotal role in the formation of the first exclusionary American federal immigration policy (Abrams, 2005: 648; Chan, 1991: 95; Zhu, 2010).

Perpetrators to Victims and Articulation to ‘Progress’

This section revisits the records of Congressional discussions to show that originally Chinese women were portrayed as perpetrators encroaching on American morality. The change of course from shaming to victimization is then described, including suggestions for the sentiments behind it. Victimization of Chinese women is depicted as going hand in hand with portraying Chinese culture as detrimental, harmful, and subordinating women, articulated in opposition to the core American value of progress.

The Congressional debates on introducing migration-restrictive legislation throughout the preceding years show that practices resembling human trafficking and forced labour were blooming along the Pacific immigration routes (Cong. Globe, 1869: 301; Cong. Globe, 1872: 1739; Cong. Globe, 1869: 300). Expanding industrial projects on the West Coast made a fertile ground for these practices affecting among others Chinese women (Cong. Globe, 1869: 300). Some Senators argued that the whole situation around human trafficking was exaggerated and under control (Cong. Globe, 1869: 300). The lawmakers agreed that forced immigration practices should be combated but warned against an overly broad reach of the proposed bills (Cong. Globe, 1869: 300).

Reading into the legislative history of the bill shows that at earlier stages of preparing the Page Act, the key legislative intention was to prevent the prostitution offered by Chinese women from taking place in California, rather than protect the women from being trafficked. It was originally asserted that Chinese women were agents of morally corrupted practices rather than victims of trafficking: ‘Importation and immigration of Chinese laborers and debased and abandoned women is not in the best interest of the country and therefore should […] be restrained and discouraged by all lawful means’ (Cong. Globe, 1870: 338). One of the first proposals of the final Page Act included a suggestion that women unaccompanied by a husband or father on a ship heading to the USA should not be allowed to enter (Cong. Globe, 1869: 299) showing the limited interest in investigating individual circumstances and focus on banishing lone women, who were expected to work as prostitutes.

The Burlingame Treaty with China and the restrictions it posed to the US migration control gradually became more considered in the law-making deliberations in Congress. The treaty only allowed restricting mutual migration in order to prevent forced labour and involuntary migration (Cong. Globe, 1869: 300–301). In the subsequent sessions, the lawmakers discussed the matter mainly under the token of social responsibility. The ‘wickedness’ of Chinese women was transformed into their victimization based on impressions of Chinese culture.

Congress referred to reports of its investigative commission or to cases tried before courts to demonstrate that Chinese women were sold to human traffickers to whom they were bound to serve as prostitutes in the USA for several years (Cong. Rec., 1874: 2300). The Congressmen blamed Chinese men for facilitating this practice. Senator John S. Hager of California remarked that Chinese men ‘bring women under contracts for purposes too vile for me even to mention in this Chamber. Their persons are bound for a term of years, and young girls from fifteen to twenty years of age are brought to California, owned entirely by those who bring them’ (Zhu, 2010: 19). Additionally, they blamed Chinese culture for facilitating oppression of women. Senator Page proclaimed that it was a mistake to ever initiate contact with China because a ‘[Chinese] woman if not used as a slave, is something worse;’ ‘They are bought and sold like cattle and hired out to the basest purposes like horses for livery’ (Cong. Rec., 1874: 4535, 4537).

This alleged Chinese oppression of women was predominantly seen as depraved and a general threat to US interests. Putting the maltreatment of women in China into a broader context of Chinese culture and deference to tradition portrayed it as lack of progress: ‘Father sells his son to servitude and daughter for prostitution;’ ‘it is impossible for them to overcome these multiform obstacles of advancement’ (Cong. Rec., 1874: 4535, 4537). Numerous times in the Congressional debates, Chinese morality and alleged lack of respect for women were presented as a threat to American culture and public order (Cong. Rec., 1874: 2299).

Yet the legal or social reality in the contemporary USA was far from promoting or accepting gender equality or pursuing any general idea of women’s rights. To pinpoint some legal milestones in this area: Constitutional Amendment enacting equality of the sexes was proposed in 1923 and passed by Congress only in 1972 (but not ratified by a sufficient number of states). Only in 1920 did Congress pass an amendment to grant women voting rights. The first regional women’s rights convention was signed in Seneca Falls, New York in 1848 (McMillen, 2008: 4). While in 1873 the US Supreme Court (1873, § 141–142) still stated that ‘it is women’s paramount destiny and mission to fulfil the noble and benign offices of wife and mother’. This is not to suggest that Americans were hypocritical, or to compare which of the two cultures oppressed women more or less. The important point is that at that time, there was no core legal value of women’s rights or equality of the sexes. Therefore, articulating the law-making initiative to the virtue of progress and alleged female subordination as a sign of lacking progress provided the initiative with the kind of a priori rightfulness with which human rights or gender equality are deployed in the same context today. Differentiation between civilized and uncivilized in the late 19th century often employed chivalrous regard and respect for women as a sign of the former (Koskenniemi, 2004: 108; Stoler, 2010: 42). Establishing the connection between Chinese subordination of women and progress helped the lawmakers to articulate specific interests to universal interests and use this articulation to further their sectoral or specific goals.

The victimization of women and articulation of perceived gender relations in China as anti-progress could have been a part of a deliberate strategy to adopt migration regulation seemingly in accordance with the obligations of the Burlingame Treaty. It could have also been a genuine result of national trauma in the aftermath of the civil war where the prevailing social spirit of distancing from any coercive activity resulted in cultural prejudices and equating Chinese ‘coolie’ labour and prostitution indiscriminately with slavery (Abrams, 2005: 657–661; Cong. Rec., 1874: 4535). Prostitution could also have been linked to slavery as it was against the Christian ideal of sexual activity within marriage and with the purpose to conceive children only (Abrams, 2005: 657–661). This could also explain the American condemnation of polygamy, another alleged example of Chinese mistreatment of women (Abrams, 2005: 657–661).

Forced Migration and Burlingame Treaty

Whether it was a deliberate strategy, or it was shaped by a genuine (yet prejudiced) desire to protect Chinese women, the connections between women and Chinese culture articulated in Congress shored up the legislative assumption that no woman from China could immigrate freely. In accordance with the language used throughout the Congressional debates, the Page Act employs the word ‘importation’ rather than immigration. It was claimed that Chinese immigration had nothing in common with free and voluntary migration (Cong. Rec., 1874: 2299).

However, even at the final stage of adopting the Page Act, the immoral behaviour of Chinese women and their unemployment were infused in the trafficking discourse. The legislators asserted that Chinese women did not have any ‘honourable occupation’ and were brought for ‘shameful purposes, to the disgrace the communities where they settled and to the great demoralization of the youth’ (Cong. Rec., 1874: 4). The main author of the Act, Horace Page, proclaimed that the Chinese:

‘bring their women here as slaves to be sold into prostitution, and [these women] openly flaunt their immoral calling on the public streets in the very face of our wives and daughters […] I do believe that this Government has the right and ought to exercise it to prevent the immigration of any group of people to this country whose moral and social relations, whose habits and mode of life, are so at variance with the genius of our institutions, that they would cause the blush of shame to mantle the cheek of the most depraved of our own race’. (Zhu, 2010: 20) (brackets added)

The condemning language used to discuss Chinese women further illuminates the tokenism of the protection objective employed in the legislation. The labour market considerations often articulated in the legislative debates in tandem with the aim to prevent forced immigration and the fact that the first Chinese Exclusion Acts (aimed at exclusion of all Chinese) followed no later than 5 years after the Page Act, also point to the understanding that the Page Act was enacted based on circumventive grounds (Zhu, 2010: 5). It has thus been asserted that the focus on importation and forced labour was enforced by the Burlingame Treaty, to mask the more pressing issue of labour competition (Zhu, 2010). By linking the migration of Chinese women to a prohibition of forced labour and trafficking, the lawmakers articulated national interests to international and made the new legislation appear necessary under their treaty obligations.

Because the legal formulations were deliberately conceived overly broadly to effect only criminal practices, prevention of forced (female) migration was a token rather than an objective (Abrams, 2005: 699). This allowed for administrative discretion leading to the exclusion of virtually all Chinese women, rather than prostitutes only (Abrams, 2005: 699). The imperative of ‘lewd and immoral purposes’ (Cong. Rec., 1875: 2161) was so broad that immigration officers tended to admit only married women (otherwise it was assumed that they were coming to be prostitutes). Officers were also mandated to exclude women in marriages that sounded suspicious to them, so they typically approved only wives of diplomats or merchants (Peffer, 1986: 42). The lukewarm and prejudiced determination to hinder trafficking of women also shows in the criteria for distinction – women with a spouse and children were deemed voluntary and women without a husband or contract, involuntary (Cong. Rec., 1874: 2299). Although proponents and opponents of the Act agreed that some kind of human trafficking and market for Chinese labourers and prostitutes existed and was to be restricted, the scope of the final Act was much wider. Possibly because the objective was to simply limit the volume of Chinese immigrants or because of genuine belief that all lone Chinese women were prostitutes and victims of human trafficking.

Building on the first articulation of specific interests to general interests, the lawmakers thus articulated the national interests to the treaty obligation to prevent forced migration and forced labour. Similarly, today human rights are amplified in stricter family reunification laws, creating inequalities impacting on a particular culture as the lawmakers articulate these laws to their obligations under human rights treaties – protecting involuntarily married women.

Analysis of The Two Case Studies

Despite their different contexts, the historical and current legislative strategies align on stating protection of women or promotion of gender equality as the objective; pursuing this objective legislatively with undue measures; and excluding women from migrating on a discriminatory basis. How are lawmakers, previously and currently, able to construct and maintain laws that are so apparently harmful to women and against non-discrimination? The theory of articulation reveals the mechanism behind the state power to control migration in general and women’s bodies in particular as deployed in the two cases.

The theory of articulation centralizes the role of narratives and discursive connections in law-making. It shows how narratives and connections, formulated by those with privileged access to the shaping of law-making discourse and regulatory knowledge (Hunt, 1997: 75), make the legislation appear to amplify the voices of women and human rights. The same narratives and connections also give legitimacy and a sentiment of universal interest to the adopted discriminatory measures.

The US case study is broader in the sense that it shows not only that the US legislation was tokenist and discriminatory, harming the very subjects it aimed to protect, but also that protection of Chinese women was an intentionally constructed objective, which is evidenced by the explicit and concrete, racist and sexist language of the US lawmakers. In this sense it is illuminating the intentionality of the process of making connections between elements without ‘a priori mutual belongingness’ (Hall, 2005: 141) Chinese women were first disdained and blamed for causing moral detriment and then labelled as victims of their supposedly unprogressive and nationally threatening culture; this demonstrates the contingency (Hall, 2005: 142) and intentional directionality of the connections made by US legislators (Purvis and Hunt, 1993: 478). In the articulation of women’s subordination and forced labour to progress, elements with unclear ideological significance (protection of Chinese women) were given ideological meaning by being linked to progress in the migration law-making context and thus being given a clear ideological meaning (it would be unprogressive not to protect Chinese women; Chinese women are protected by restrictive migration laws) (Laclau and Mouffe, 2001: 106). From a very concrete interest of Californians to diminish prostitution, the articulation of the elements of Chinese culture, oppression of women and progress, transferred the matter to the general interest of the whole nation demanding Congressional action.

The US law-making deliberations also illuminate the reductionist logic of articulation. Broad and abstract elements (such as progress) are articulated with a very narrow and ideological meaning. The postcolonial feminist knowledge on the contingent markers of civilization and progress in the 19th century deployed by the Western powers to justify dominance and gender violence (McClintock, 1995: 35–40; Stoler, 2010) further helps to break the necessitarian impression of the connections and unravel the evocative links made by opinion or custom (Laclau, 1977: 7).

Today’s legislators articulated the elements of forced, early, or polygamous marriages to the values of gender equality or protection of women. While the practices are very concrete, the values are perceived as universal in the EU, Denmark, and other Western European states. The meaning of these values has thus been reduced in the family reunification context and given a new ideological significance. Through articulation, the lawmakers create a new relation between elements (women’s rights and family reunification) so that their identity is modified (women’s rights are protected by restricting family reunifications) as a result (Laclau and Mouffe, 2001: 105).

The extracts from Danish law-making show that concrete interests in unemployment of Muslim women and integration of families continuously reunifying with spouses from their countries of origin were at stake. These sectoral interests were articulated as general interests of Danish society by articulating protection of women and gender equality to the cultural ‘Muslim’ marriage practices. The historical case study showed that leadership does not consist in imposition of a readymade worldview but in active articulation around the fundamental ideological elements of the society (Mouffe, 2014: 15). To the present case it helps illuminate that values of promoting gender equality or protecting women do not themselves stand in opposition to forced, early, and polygamous marriages. Rather these marriage practices were articulated as opposing gender equality. From the ideological perspective, this articulation 1) helped to circumvent anti-discriminatory international obligations; and 2) legitimized discriminatory practices with the ‘general interest’ in protecting women and promoting gender equality. Articulation is an intentional and directional practice paving the way to achieve desired objectives, although it might ensue from a genuine prejudiced sentiment.

The other side of the same coin is the articulation of national interests to international. International legal obligations prevented the US from obstructing immigration from China but obliged the US to prevent forced immigration or labour. The historical US lawmakers articulated the oppression of Chinese women as forced migration and argued that it was their treaty obligation to halt it, thus articulating their national interests to international. Restrictive legislation was portrayed not as the lawmakers’ choice, but as their treaty obligation. In this case, the restriction on forced labour did not a priori speak for excluding Chinese women from migrating; the argument connecting Chinese women with human trafficking and prostitution had to be created.

The international human rights framework presently prohibits states from discriminating on the basis of religion or ethnic background. At the same time, it prohibits states from tolerating gender inequality and obligates them to protect women. Current lawmakers articulate legislative discrimination as a necessary result of these obligations toward women and gender equality. Thus, the national interests of Western European immigration states to discriminate between migrants for socio-economic purposes are articulated as international and labelled as efforts to further the values of gender equality and protect women. At this step the lawmakers build on the initial articulation of cultural practices opposing to the given values. Thus, the articulation creates connections: that forced, early and polygamous marriages as opposing to the given values must be excluded from family reunification by the imperative of international obligations.

Additionally, the involvement of human rights values in the migration law-making re-defines their meaning and reduces their availability to the people from the targeted culture. The articulative practice behind the adopted laws and their design reduce the meaning of gender equality in family reunifications into being in opposition to the targeted marriage practices. The application of these migration laws then illuminates how articulation serves to sustain dominant relations. The alleged reason for invoking women’s rights in the legislation – lack of consent or respect for women’s choices – is not investigated when the laws are applied in either of the cases. The lawmakers make a deliberate choice not to hear the women’s perspectives.

The EU and Western European lawmakers guide administrative practice to make legal presumptions of forced marriage extremely demanding to refute or construct the rules as rigid (without a possibility of dispensation). As a result, more women than before, predominantly Muslims, are excluded from immigrating and deprived of legal means to challenge this exclusion, while the rules maintain the position of pursuing their wellbeing. In the historical case, lawmakers advised that the law had to be formulated broadly enough to give effective discretion to the immigration officers and thus settled on the term ‘immigrating for lewd and immoral purposes’ (Cong. Rec., 1875: 2161). This formulation included cases which did not belong to the categories of importation or forced labour. In administrative practice virtually all lone and poor married Chinese women were excluded from immigration under the token of halting their importation and forced labour, without administrative efforts to verify their will to work or immigrate. The measures, based on articulation of cultural practices against international obligations, are thus deliberately constructed to reinforce relations of domination (Purvis and Hunt, 1993: 497), which in this case means to systematically harm the targeted women under the token of imposing international obligations designed for their protection.

While seemingly amplifying women’s voices and rights, the lawmakers reduce the complexities of these values to produce tunnel-visioned, yet broadly aimed, exclusionary measures pertaining also to those marrying/migrating voluntarily. The articulation is exercised to make ‘ideological sense’ of the legislation. It directs the deployment of law toward sustaining dominant–subordinate relations, mystifying differential treatment and structural inequalities by appearing to be devoted to the international, universal interest in protecting women and enhancing equality of the sexes (Purvis and Hunt, 1993: 497).

This analysis demonstrates that ‘articulation’ lays a foundation and a shield of protection to laws reproducing domination and discrimination to further particular rather than general interests. It reveals how lawmakers repeatedly tokenize women’s rights and protection and use them as a veil to shore up stricter migration laws that result in immediate restrictions on these women’s options. The similarities between the well-intended objectives, unrefined measures, and harmful effects of the historical and present law-making strategies creating women’s subjectivities in migration, the explicitness of the historical language and the far-reaching, clearly arbitrary, and tokenist connections articulated through the law-making give valuable insights into the works of articulation in migration law-making then and today.

The comparison gives rise to further insights worth mentioning but not investigated in depth within the scope of this article. Comparing the two cases exposes the continuity of meaning and use in law-making of the historical notion of ‘protecting women’ and the present notion of ‘gender equality’. In migration law-making discourse today, lawmakers appear to use these notions interchangeably rather than distinctively. This may question whether in the era of women’s equality, women are still being treated as objects of (paternalistic) protection. The parallel with the historical case also helps to demystify the experience of Western women as a historically oppressed group (Purvis and Hunt, 1993: 478), by showing that the case may be made for protecting women not only as a virtue but also because it serves the policy goal of victimizing non-Western women, portraying their culture as depraved and reducing their immigration. Legislation based on a generalized portrait of an allegedly harmful ‘culture’ (Kapur, 2002; Yuval-Davis, 1997) deprives women from these cultures of agency and reduces their means of legal action.³ Protection of women, while appearing in justification of new migration laws as an amplification of the female voices in the host immigration state, suffers from moral superiority resembling colonial relations (van Walsum, 2008: 7) and causes exclusion of migrant women under a broad key without striving to locate real victims and offer them empowerment. Protection of women is thus tokenized in present migration law-making, which gives Western women a false perception of equality of sexes being an overarching virtue dictating direction of laws.

Conclusion

The article introduced current law-making strategies in migration law on the level of EU and in Denmark and other Western European states aiming to promote equality of the sexes and protection of women by way of introducing stricter family reunification rules. Drawing on previous research within feminist migration scholarship, the article first demonstrated that the measures adopted do not correspond to the stated objective of promoting gender equality – in effect they hinder the immigration of women whose wellbeing they purport to support. Through juxtaposition of current Danish and EU law-making on family reunification with late 19th-century US migration law-making to exclude Chinese women and labour migrants, the article showed that the described strategies functioned similarly both before and after the rise of modern human rights, women’s rights, and gender equality.

The methodological benefit of using the theory of articulation is that it demystifies the mechanism supporting these legislative practices. The theory of articulation furthers the analysis beyond demonstrating that apparent commitment to (human) equal rights is accompanied by patronizing, culturally superior attitudes toward immigrant women. The theory explains how legislators use their articulative power in the law-making discourse and regulatory knowledge to construct and maintain tokenist laws that impair and discriminate against women, regardless of the contemporary legal and social attitudes to women’s equality and protection. The articulation is performed at several different moments but at two distinct levels. Articulating that cultural practices are opposing to values of general national interest (specific interests to general); and articulating that enactment of stricter migration laws is in the interest of international community (national interests to international). While in both case studies, the international obligations limit the national discretion in enacting restrictive migration laws, the lawmakers articulate the new immigration restrictions to appear to be dictated to them by the international obligations. The adoption of discriminatory laws is then presented as a result of devotion to interests beyond the national. In that way, lawmakers are able to sustain legitimacy for apparently tokenist and discriminatory laws.

Protection of women and gender equality as values are tokenized to allow lawmakers to present their specific goals as general goals. However, upon enactment of the rules made to protect women, the allegedly oppressed women are typically excluded and deprived of options for migration and legal action. This strategy also mystifies the experience of Western women as a historically oppressed group. Equality of the sexes – the result of their historical social battle – is used to reach policy aims irrelevant for furthering equality between the sexes – reducing or re-designing immigration – while marginalizing non-Western women.

Footnotes

Acknowledgements

I thank my colleagues at Erik Castrén Institute, Martti Koskenniemi and Immi Tallgren, for their comments at the idea formulation stage of this article. I also particularly benefited from the comments of David Kosar and the researchers at JUSTIN, MU Brno, provided during my research visit there. I am indebted to Karen Knop, Saskia Bonjour and Tuomas Ojanen for their support and suggestions during the final stage of writing this article. I thank the peer-reviewers for challenging me, helping me strengthen the arguments in this text and for their patience. All errors are my own.

Declaration of Conflicting Interests

The author(s) declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Funding

The author(s) received no financial support for the research, authorship, and/or publication of this article.

ORCID iD

Nicole Stybnarova

Notes

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