Creative litigation

Female lawyers look at laws from new perspectives to advance women’s rights.

Womens Link Worldwide. (Maggie Zelonis, Estefanny Molina, Gema Fernandez) / Photo: Olmo Calvo

Read the article written by Marta Borraz for elDiario.es (Spain).

Published the 8th march 2023

In Colombia, the government has decriminalized abortions occurring until the 24th week of pregnancy. In Spain, the children of abused women are now recognized as direct victims. These are but two examples of the hard-fought battles won by Women’s Link Worldwide, an organization founded in 2001 by two lawyers who were then living in the United States. Their goal is to bring paradigmatic cases to court in order to end discrimination toward women and girls. 

Today there are about 20 professionals involved with Women’s Link Worldwide, most of them lawyers. COVID-19 forced the closure of their offices in Madrid, Bogotá and Nairobi, but they remain virtually connected. Their strategy is to leverage the power provided by the law to achieve change. In practice, this means identifying discrepancies between rights recognized on paper—whether in constitutions, international treaties or national laws—and the reality of women, who in many cases do not enjoy these rights. Then they spring into action, sometimes in conjunction with other associations. 

Their main tool is strategic litigation, meaning they litigate cases that can have a widespread impact. “We look for cases that can result in structural change, ones that can have a lasting impact beyond that specific case,” says Esteffany Molina, a senior lawyer at Women’s Link Worldwide. She works out of Madrid along with fellow lawyer Gema Fernández, a member of the legal direction, and Maggie Zelonis, part of the development team. 

Fernández explains that the cases they choose are usually representative of structural discrimination, which means that a case is about something that happens to many women, not just to one individual who had bad luck or was in the wrong place at the wrong time. This occurs because “there is something that doesn’t work, a violation of human rights.” Their aim is to correct these violations.  

One of the most significant legal actions initiated by Women’s Link was the case of Ángela González Carreño, a Spanish woman who was a victim of domestic violence. Carreño had left her home, taking her daughter, Andrea, with her, but the abuse continued. She filed more than 30 complaints and repeatedly asked the court for protection for her daughter, but her requests were never granted. In 2003, her ex-husband murdered seven-year-old Andrea during an unsupervised visit.

Carreño tirelessly tried to prove that the State bore responsibility for Andrea’s death, something that was finally recognized in 2014 by the United Nations Committee on the Elimination of Discrimination against Women (CEDAW), where Women’s Link argued the case. The verdict ordered Spain to compensate Ángela but also imposed several general obligations, including training for judges to avoid reproducing gender stereotypes and “taking appropriate measures” so that gender violence is taken into account when determining child custody. 

“The impact of that case was global,” says Molina. She points out how much Spain has progressed legally and socially in protecting victims’ children; society now sees them as direct victims, and this perception became law in 2015. Two years earlier, Spain began to track the number of children murdered in situations like Andrea’s. Since then, there have been almost 50 cases.  

This strategy is replicated wherever the organization operates. In Chili in 2021, Women’s Link joined with the local organization Miles Chile in a class-action lawsuit for the almost 300 women who had experienced unwanted pregnancies because of defective contraception pills made by the pharmaceutical company. They managed to get the company to compensate the victims and to get the United Nations to ask the State to allow abortion in such situations; in Chile, it is not one of the three allowable exceptions. 

Women’s Link was also one of the organizations that fought a regulation passed by the Partido Popular in 2014 preventing Spanish women without male partners from getting fertilization treatments. The specific case concerned a Madrid hospital that interrupted a lesbian couple’s fertilization treatments. The court ruled against the Region of Madrid and determined that the 2014 regulation was discriminatory so could not be applied. Other regions argued similar cases before and after this one, and November 2021, the PSOE and Unidas Podemos left-wing government coalition restored these rights on a national level.  

Women’s Link feels that it is important for their involvement to extend beyond the strictly legal field. “Judicial proceedings do not take place in a vacuum but within a social context, which we mobilize prior to the trial. We don’t do this alone,” says Fernández. It is in the organization’s DNA to take on cases that bring together certain conditions, such as the possibility of demanding a legal framework for women’s human rights and a mobilized civil society that can fight for change or use the resolution as a tool for political action.  

So while legal victories are the goal, not achieving them does not imply failure. Fernández defines the legal process as “a catalyst,” but “it is not the only important thing. There may be cases we know are difficult in advance, but what we want is to set the foundations, to create a debate, to make people listen to new perspectives or to articulate human rights discourses, to unmask hoaxes, to create new narratives and so on. Although we may not win, we will have taken steps, and will probably have made the land more fertile for future action.” 

When members of Women’s Link talk about using “the power of the law” to promote change, they mean that when they litigate a case, they think of all the possibilities that national legislation, international treaties and human rights standards provide them, nationally and internationally. 

Molina says they are convinced that the law is “a versatile tool that must be adapted to current contexts.” What does this mean? “Although there are tools that are not specifically designed for a precise type of law, it is up to feminist lawyers to think about them creatively. The law has always been masculine, and the cases that are taught in law school are very strict, but we believe we can think about them in another way.” 

She cites an example from almost two years ago, when the organization argued a “collective rights” suit in Colombia. It concerned Venezuelan women who did not enjoy the right to sexual and reproductive health services because of their immigration status. Womens’ Link argued that these rights were “collective rights,” just like citizen security or a healthy environment. “We presented data pertaining to women having irregular immigration status to demonstrate that a group of people was affected, and we asked for interim measures, which were granted.” In this case, a tool not designed for this specific purpose ended up serving the feminist cause.