The jurisprudence of rights has overwhelmingly dominated the literature on gender and constitutional law. This is understandable, but problematic. Express constitutional rights are, without a doubt, immensely significant for the goal of gender equality, and no modern constitutional designer could overlook this. However, despite what might seem to be the uncontroversial character of rights and the attendant simplicity of their drafting, the issue is far from simple.

In contemplating constitutional design, both the language of rights and the near-exclusive concentration on constitutional rights need to be questioned. To begin with, such concentration has the effect (as discussed in Chapter 1) of distracting attention from questions of design that arise prior to issues associated with rights. These are questions relating to structure and process, to women's access to positions of power and agency, and to their ability to take part in decisions about the shape and application of the law. Such questions arise well before issues of whether the law conforms to rights, or surrounding the establishment of standards for determining a breach of rights.

Women's membership of the constitutional community is closely affected by the extent to which equality rights are given recognition, but many other factors are important. As argued in previous chapters, constitutional “opportunity structures” – the ability of a constitution to enable change-oriented collective action and to facilitate women's part in the process of making and implementing change (both political and legal) – require close consideration, separately from textual rights.