In this Article, I explore the tension between the politics of culture and the rights of women and girls to equality, privacy, and sexual autonomy in the context of epidemic disease. Specifically, this Article examines the political debate surrounding the resurgence of virginity testing, its widespread popular support in certain communities, and the South African government’s recent efforts to prohibit the practice. This Article argues that the current debate over virginity testing, which focuses on abolition or accommodation of the practice, is misguided and polarizing. It argues that these perspectives on the debate increase the likelihood that the problem causing the testing resurgence””high rates of HIV/AIDS infection that disproportionately affect women and girls””will remain unresolved. Recognizing that the pending legislative ban on virginity testing will not actually end testing, this Article proposes a way to reframe the debate. I argue that there should be a public discourse on the recognition and realization of a robust right to health and the ethical obligation of government to provide accurate health information and adequate health services. But the government must provide these services in a manner sensitive to cultural differences, rather than focus on a presumed conflict between gender equality and cultural autonomy.
Part I explains the virginity testing procedure, tracks its revival, and discusses complications and concerns associated with testing. Part II situates virginity testing within the human rights debate between universalism and cultural relativism. This Part reviews the literature on gender equality and cultural self-determination and discusses the rights-based arguments advanced by both opponents and proponents of the practice. It considers the pertinent provisions of international human rights instruments and the South African Constitution. This Part further argues that stakeholders in the legislative battle over virginity testing have drawn the wrong battle lines by failing to focus on the unrealized right to health, by viewing culture as unchanging, and by ignoring the broader challenges at play.
Part III proposes that the divergent positions taken by stakeholders in the testing debate can be reconciled not only by shifting toward realizing a substantive right to health, but also by adopting a pragmatistic approach to cultural pluralism and an understanding of both rights and culture as contextual and adaptable. Both these approaches could be enhanced by a human rights discourse informed by “capability theory,” which, through its appreciation of diversity and its emphasis on positive freedoms, would necessarily redirect the focus of government and civil society efforts on the issues underlying the virginity testing resurgence.15 This Article concludes by noting that the resurgence in virginity testing as a community self-help solution signals a systemic failure on the part of the South African government and the international community to adequately address the HIV/AIDS epidemic. This Article offers a pragmatistic approach to addressing the problems associated with cultural pluralism in diverse developing countries. It advances capabilities theory as a way to address the theoretical difficulty that socioeconomic rights present to human rights discourse, and to inform attempts to mediate the apparent conflicts between gender equality and cultural autonomy.