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

Nicole Stybnarova

doi:10.1177/09646639211023857

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.

Highlights

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
Through juxtaposition of current Danish and EU lawmaking 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 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

Summary

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. 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.

Results

Conclusion