The Happy Judicialization of Sexual Rights: Abortion and Same Sex Marriage in Mexico

This project studies one of the most intense moments of the judicialization of Mexican politics: the Mexican Supreme Court of Justice’s intervention in the legal reforms on abortion and same sex marriage approved by the Legislative Assembly in Mexico City in 2007 and 2009. The cases stimulated the optimism of a transnational sexual rights agenda with images of progressive legal reforms and a responsive Court. But a study of the cases, it is argued here, reflects little engagement of the Supreme Court with human rights agendas of progressive images of judicial activism; instead, the momentum of judicialization speaks of a critical period of readjustment of authority in Mexico’s democratic institutions.

Judicialization in Latin America is generally studied as the opening of constitutional courts to the citizenry and the establishment of tools for judicial review as the guarantor of constitutional rights in the new democracies. The Mexican experience of judicialization has been of a Court becoming the arbiter of conflicts between the executive and legislative branches of the government; it was historically initiated as a project to guarantee the stability of the political regime and the federal order. The Mexican Supreme Court evolved in democracy with a narrow formalist and self-constrained interpretation of human rights. The sexual rights cases were accepted by the Court when it was going through a compromising political period, and their successful decisions helped to moderate the legitimacy of the judicial tribunal, encouraging the attachment of social movements towards the Court, seen as a vehicle for social change.

The thesis recognises sexual rights as a location of enunciation and production of subversive knowledge, generating intimate processes of subjective empowerment that inform new relationalities across a political sphere which includes legal culture. Sexual rights guide the study of the Court and the desire of a better trajectory of judicialization. The legal reforms and their judicial interventions are presented as optimistic promises, as signs that anticipated something good to come, even though they did not fully deliver against such hopes. Part 1 presents a theoretical frame to engage with optimism and promises, aiming to relate to the strategies of critical optimism with which one as a researcher can evaluate the conditions in which different people can relate (or not) to desired futures. Chapter 1 is a theoretical consideration of promises and optimism, chapter 2 presents the optimistic development in the new constitutionalism in Latin America embodied in constitutional moments, or constitutional reforms. Part II presents the political context that precedes the cases: first, in chapter 3, with the history of Mexico City and the institutionalisation of opposition, and then, in chapter 4, with the establishment of tools for constitutional review in the Supreme Court. Part II is dedicated to the case studies.