Gender in Climate Litigation in Latin America: Epistemic Justice Through a Feminist Lens

Image Source: Ericka Lugo, Grist.

This piece is part of GNHRE’s series dedicated to climate litigation in Latin America. We will begin with this blog by Natalia Urzola Gutiérrez, an SJD student at Pace University and GNHRE’s COO.

In recent years, Latin America has positioned itself as a fertile hub in emerging strategic climate litigation. Latin America’s climate litigation has myriad novel approaches emanating from bold strategies and innovative judgments.[1] When analyzing the region’s cartography, in Auz’s terms, most of these strategies are deeply intertwined with human rights-based claims, which in turn derives partly from Latin America’s substantial human rights and environmental legal frameworks.[2]

Furthermore, at the forefront of Latin America’s climate litigation are marginalized groups, as these groups tend to suffer the worst effects of climate change. However, Latin America has yet to engage critically with the differentiated effects of the climate crisis on marginalized groups, despite the significant epistemic justice implications of the crisis in the region. I analyze this matter from a gender critical perspective in an article published in a forthcoming special issue by the Journal of Human Rights Practice as part of GNHRE’s project on Climate Litigation in the Global South. This blog post summarizes my findings, namely that seen through the lens of feminist epistemologies (in particular, Feminist Standpoint Theory and intersectionality), climate litigation in Latin America reproduces power imbalances in knowledge production by failing to acknowledge the epistemic advantage of marginalized groups. To do that, I analyze three relevant cases and offers insight as to what feminist epistemologies may bring to Latin America’s climate litigation – should the region adopt a gender-conscious approach.

Feminist Standpoint Theory and intersectionality as theoretical frameworks to study climate litigation in Latin America

Contextual factors significantly influence people’s perception of the climate crisis and, consequently, how concerned they are regarding its consequences. Social groups and individuals possess situated knowledge which originates in particular experiences. However, more often than not, marginalized people’s epistemic agency is undervalued and their capacity as knowledge producers is overlooked. Knowledge producing scenarios like climate litigation might perpetuate these dynamics.

On one hand, Feminist Standpoint Theory (FST) seeks to bring value to knowledge and social understanding created from the perspective of the oppressed, and does so through four main theses: (i) strong objectivity; (ii) situated-knowledge; (iii) epistemic advantage; and (iv) power relations. Intersectionality, on the other, adds a critical analytical layer through exposing the unique forms of inequality caused by multiple and concurrent axes of privilege and oppression that determine environmental and climate change issues. Shedding light on power imbalances that lead to marginalization, this framework allows the deconstructing of processes within dominant epistemologies that influence exclusionary practices in knowledge production. One example can be found in the way Western science and research often overlook and undervalue Indigenous traditional environmental knowledge when determining climate change responses despite its socially situated relevance (see article’s section 3 for a more detailed discussion on feminist epistemologies).

As a social construct, gender is often used in binary terms and reduced to social differences between males and females. Yet, this understanding is problematic as it reproduces dominant understandings of masculinity and femininity that exclude heteronormative non-conforming individuals. In the context of climate studies, gendered impacts are often equaled to impacts of climate change on women, suggesting women are the only gendered beings (see section 2 of the article for an overview). In the article I claim that climate litigation in Latin America follows this same problematic approach when studying the gendered impacts of the climate crisis and argue for a more context-specific analysis of case studies to avoid an essentialist, binary approach. FST and intersectionality allows us to understand how individual and group subjectivities are constructed and gendered and how these categories are mobilized in political projects that affect knowledge production.

Feminist epistemology in Latin America’s climate litigation: a case law review

Failing to engage in a feminist understanding of the climate crisis may lead climate litigation to reproduce exclusionary patterns present in climate governance.[3] A gender-conscious approach in climate litigation may be performed by gaining a truer understanding of precisely how climate impacts differ depending on gender. Further, using this approach will better reflect the needs, interests and cosmogonies of marginalized groups, instead of conflating rights and interests of entire communities and groups into generally one decision.

In the article, I studied the gender-obscure reasoning of Latin American courts through two cases: Lhaka Honhat and Future Generations. The Lhaka Honhat case, albeit ground breaking, failed to fully grasp with the recognized vulnerabilities of Indigenous communities in light of environmental damages. In February 2020, the Inter-American Court of Human Rights (IACtHR) declared the violation of Indigenous rights to communal property, cultural identity, food, water and a healthy environment by the Argentinean government. Among other orders, the IACtHR instructed defendants to halt deforestation in Indigenous lands. These communities possess a socially located epistemic advantage over natural resource management and sustainable ecosystemic cycles. Yet, the IACtHR failed to acknowledge their authority obscuring the contribution of oppressed groups to their own issues. These communities have coexisted with nature for centuries despite governmental neglect and exclusion – and have suffered intersecting oppressive practices due to ethnicity and gender. Hence, their unique position allows them to better understand the failures of governmental action in protecting the environment and human rights and are better equipped to provide solutions to their problems. Had the IACtHR paid closer attention to the epistemic advantage of Indigenous knowledge, especially regarding their relationship with the environment (an aspect underscored by these communities in the petition), the trailblazing decision could have been more aligned with their realities while acknowledging their situated-knowledge as valuable for understanding their own petitions and interests.

The second case I studied through the lens of feminist epistemology theories is Future Generations. 25 children sued the Colombian government for failing to curb climate change violating their fundamental rights. The Court recognized the need to protect the rights of both present and future generations and ordered the formulation of an intergenerational pact to ensure the protection of the Amazon rainforest as vital in the fight against climate change. FST argues in favor of elevating situated knowledge to recognized marginalized groups’ epistemic advantage. In this case, children possess unique knowledge that could have been used by the Court to provide nuance to claims of shared responsibility for the climate crisis. Moreover, children face distinct and intersecting discrimination due to their age, race, gender, sexual orientation, disabilities, and ethnicity. Had the Court valued their epistemic advantage, children could have been recognized as agents of change and knowledge producers, instead of mere users of the knowledge being produced. Particularly, the lack of gender analysis obscures the unique oppression suffered as a result of the gendering process in the context of climate change. For instance, oppressive gender roles may lead to school dropouts affecting mainly girls due to the need to take on caretaking responsibilities. Furthermore, despite the creation of an intergenerational plan stemming from the judicial decision, epistemic injustice may still take place in the form of objectification (assuming the 25 children plaintiffs speak on behalf of all children).

Lastly, I studied yet another pervasive form of epistemic injustice in climate litigation: tokenistic inclusions. The case through which the analysis was conducted is the Mexican Citizens case, due to its potential to address participatory injustices related to knowledge production. Two Mexican women filed an amparo mechanism against the removal and fragmentation of the mangrove ecosystem, located in the Laguna del Carpintero in Tamaulipas, as a result of the unauthorized construction of an ecological theme park. The Supreme Court declared a violation of the environmental impact assessment requirement and the constitutional right to a healthy environment. The Supreme Court halted the construction and ordered the formulation of expert reports and that these be made available to the plaintiff. Following the plaintiffs’ main arguments, the Supreme Court acknowledged their positionality and recognized the power imbalances inherent in this type of legal actions. However, when indicating the need of ‘expert’ reports, the Supreme Court failed to consider the plaintiff as an expert and to value their epistemic advantage and incorporate their knowledge to recover and protect the ecosystem. Again, plaintiffs are deemed mere knowledge users instead of producers.

A gender-conscious approach to Latin America’s climate litigation: a matter of epistemic justice

Latin American climate litigation shows excellent potential for addressing intersecting and overlapping aspects of climate and epistemic justice embedded at the core of these cases. Feminist epistemology theories, including FST and intersectionality, provide some key promises and insight regarding how to engage meaningfully with gendering processes within climate litigation. In the article, I highlight how these promises are two-fold and aim to unveil power dynamics in climate litigation, while giving value and re-centering marginalized groups’ voices and contributions in knowledge production. Although non-exhaustive, these promises represent a starting point toward more feminist climate litigation.

As discussed, Indigenous communities, children, LGBTQIA+, women and other marginalized groups socially located epistemic advantages continue to be undervalued as a result of the gendering process of knowledge production. Applying feminist epistemology unveils the value judgements and biased interests embedded in most climate justice and climate litigation arguments. For example, in the Lhaka Honhat case, the IACtHR’s lack of understanding of the Indigenous communities’ particularities regarding the right to a healthy environment may end up reproducing governmental oppressive practices by forcing these communities to comply with orders that reflect non-Indigenous ways of interacting with the environment.

Marginalized groups understand the conceptual practices of power and ideological strategies that work to design, maintain and make their oppression appear natural. In Latin American climate litigation, marginalized groups are mobilizing before the courts and forming collective identities that produce knowledge to answer their needs and desires about nature (including climate change) and social relations. Bringing these voices to the forefront is a way of recognizing their role as epistemic agents. Feminist epistemologies challenge the mainstream focus of the producers of knowledge and move it away from the dominant gaze towards the periphery, bringing marginalized voices to the center. In doing so, climate litigation may allow a better understanding and action against the climate crisis that responds to the realities of the communities affected. As mentioned, the courts in Future generations and Citizens ordered the inclusion of the children and women plaintiffs (respectively) in the actions to be taken. However, courts failed to give value to their situated knowledge and epistemic advantage and relegated them to mere users of knowledge.

Conclusion

Despite Latin America’s positioning as a leader in climate litigation, a critical analysis is lacking. Adopting a critical approach to the study of climate litigation ensures epistemic justice is achieved and historical systems of oppression are no longer reproduced. Feminist epistemology theories, such as FST and intersectionality, may present unique potential to address interlocking problems in climate litigation. These theories problematize how knowledge production practices are being carried out and provide tools to unveil the epistemic advantage of subordinated groups arguing for greater participation of marginalized groups in knowledge production. Re-centering marginalized groups’ voices requires acknowledging the value of situated knowledge in formulating and implementing climate action plans, including those resulting from climate litigation.


[1] See Cavedon-Capdeville, F., Berros, M. V., Villavicencio-Calzadilla, P., and Filpi, H. An Ecocentric Perspective on Climate Litigation: Lessons from Latin America. Journal of Human Rights Practice (forthcoming).
[2] See Auz, J. (2022a) ‘Dos supuestos aliados: conciliar la justicia climática y los litigios en el Sur Global’, in Garavito, C.R. (ed.) Litigar la emergencia climática: La movilización ciudadana ante los tribunales para enfrentar la crisis ambiental y asegurar derechos básicos. Siglo Veintiuno Editores, pp. 147–162.
[3] For a more in-depth analysis of the evolution of gender in climate governance see, i.e., Lupin, D. (2021) ‘Exclusion, Objectification, Exploitation: Gender, Sexuality and Climate Change Information Services.’ In Pinheiro, G., Short Discussion Series, CSA&G and university of Pretoria; Arvidsson, M. (2018) ‘Targeting, Gender, and International Posthumanitarian Law and Practice: Framing The Question of the Human in International Humanitarian Law’, Australian Feminist Law Journal, 44(1), pp. 9–28. doi:10.1080/13200968.2018.1465331.; Jones, E., Kendall, S. and Otomo, Y. (2018) ‘Gender, War, and Technology: Peace and Armed Conflict in the Twenty-First Century’, Australian Feminist Law Journal, 44(1), pp. 1–8. doi:10.1080/13200968.2018.1481340.