What Not To Wear: Islamic Dress And School Uniforms

In this appeal the House of Lords held that a school’s refusal to change its school uniform rules to accommodate the religious beliefs of one of its pupils did not constitute an interference with freedom of religion and the right to an education. This note asks whether the House of Lords by framing the issue as a matter of individual choice and informed consent may have underestimated the potential for social harm inflicted by a school’s unwillingness to accommodate certain types of religious beliefs where it has already adapted its school uniform rules for others. R (on the application of SB) v. Governors of Denbigh High School [2006] UKHL 15; [2006] 2 W.L.R. 719; [2006] 1 F.C.R. 613     

“Gender is No Substitute for Sex”: A Comparative Human Rights Analysis of the Legal Regulation of Sexual Identity

U.K. regulation of sexual identity within a marriage context has traditionally been linked to biological sex. In response to the European Court of Human Rights decisions in Goodwin and I.,² and in order to address the question of whether a transsexual person can be treated as a “real” member of their adoptive sex, the U.K. has recently passed the Gender Recognition Act 2004. While the Act appears to signal a move away from biology and towards a conception of sexual identity based on gender rather than sex, questions of sexual identity remain rooted in medico-legal assessments of the individual transsexual body/mind. In contrast, because transsexual people in some parts of Canada have been able to marry in their post-operative sex since 1990, contemporary debates on the sexual identity of transsexual people in British Columbia and Ontario do not focus on the validity of marriage, and more frequently centre upon the provision of goods and services, in human rights contexts where sex is said to matter. Currently in Canada this is prompting questions of what it means to be a woman in society, how the law should interpret sex and gender, and how, if at all, the parameters of sexual identity should be established in law. This article seeks to compare recent U.K. legal conceptualisations of transsexuality with Canadian law in this area. As human rights discourse begins to grow in the U.K., the question remains as to whether or not gender will become an adequate substitute for sex.See Johnson “Gender is no substitute for Sex” Daily Telegraph, 24 February 2004. I am being disingenuous here as the author of the article is arguing that replacing the term sex with gender in relation to transsexuality is erroneous and an annoying Americanism, whereas I am arguing that neither term is adequate. Goodwin v. U.K. [2002] 35 E.H.R.R. 18; I. v.U.K. [2002] 2 F.L.R. 518.     

Which is it you want – equality or maternity leave?

In Alabaster v. Barclays Bank plc and Secretary of State for Social Security (No. 2: [2005] E.W.C.A Civ. 508, [2005] I.R.L.R. 576.) Michelle Alabaster won a grand total of ￡204.53 (plus ￡65.86 interest) after eight years of litigation, which included two visits to the Court of Appeal and one to the European Court of Justice. This marathon resulted from the sex discrimination which Alabaster had alleged in relation to the calculation of her Statutory Maternity Pay (S.M.P.) whilst she was pregnant 10 years earlier. The technicalities of the statutory schemes involved should not be allowed to disguise the important principle which finally emerges in the Court of Appeal and which underlines one of the longstanding criticisms of the equality legislation, namely the requirement that a woman must compare herself with a man in order to establish unlawful sex discrimination.     

Sentencing Domestic Homicide Upon Provocation: Still `Getting Away with Murder

Sentencing practices in cases of domestic homicide have been the object of critical scrutiny on previous occasions across a number of jurisdictions. It has been suggested by some that these practices reveal judges to be taking a more lenient approach to women who kill their violent male partners than to men who kill allegedly unfaithful female partners. This note evaluates claims of gender bias in sentencing practices in UK cases of domestic homicide following the Court of Appeal sentencing decision in R. v. Suratan, R. v.Humes and R.v. Wilkinson (Attorney General's Reference No.74, No. 95 and No. 118 of 2002) [2002]E.W.C.A. 2982 concerning three men who killed their female partners. It will argue that in the wake of this decision current proposals to review both the substantive law of provocation and sentencing practices are to be welcomed. This revised version was published online in July 2006 with corrections to the Cover Date.     

Recognising Family Diversity: the ‘Boundaries’ of <Emphasis Type="Italic">RE G</Emphasis>

In Re G, the Court of Appeal awarded a joint residence order to the appellant, who was the lesbian ex-partner of the child’s full biological mother. The award also indirectly vested the appellant, a social parent, with parental responsibility and extended a body of case law to same-sex couples, which had until now only been applied to heterosexual couples. The initial purpose of this note is to outline the legal issues of the case in the context of the framework of parental responsibility set out in the Children Act 1989, putting forward a test of ‘parental fitness’ (which focuses on active ‘care’ as its central consideration) for social parents who must appeal to the court’s discretion to obtain parental responsibility. Secondly, the note offers at once a positive reading of Re G while highlighting a number of reservations centring upon continued legal preference for the ‘sexual family’. It is argued that while the legal recognition of ‘family diversity’ and parenthood remains modelled on this ‘sexual family’, the relaxation of family ‘boundaries’ (despite legal victories such as Re G) will remain limited. Re G (Children) [2005] E.W.C.A. (Civ.) 462     

Understanding Sexual Harassment a Little Better Reed and Bull Information Systems Ltd v. Stedman

This case note reviews the guidelines issued by Morison J. in the Employment Appeal Tribunal at the end of the decision in Reed and Bull Information Systems Ltd v. Stedman [1999] I.R.L.R.299. The author argues that while the judge’s decision is to be welcomed in adopting an approach more sympathetic to victims of sexual harassment, it also raises a number of problems by placing a burden on the victim to place the harasser on notice that she does not welcome his conduct. The guidelines are likely to be usefully applied in any jurisdiction that has rules forbidding sexual harassment. The author considers the guidelines from both a practical and a doctrinal angle and indicates that the right to be free from sexual harassment is one that the courts are reluctant to protect like other civil rights. This revised version was published online in July 2006 with corrections to the Cover Date.     

From Mrs. Burns To Mrs. Oxley: Do Co-habiting Women (Still) Need Marriage Law?

Following the U.K. Labour government commitment to marriage in the 1998 Green Paper ‘Supporting Families’, Barlow and Duncan produced a robust critique calling for ‘realism’ in recognising that many couples are now choosing not to marry, that too many do not make informed decisions as to whether to marry or not and that, on the basis of their survey, over 40% of respondents believed that some form of family law protection would be available to them, despite their lack of marital status. When added to a concern that economically vulnerable cohabiting women do not receive adequate protection in property law, it seemed all too obvious that the government commitment to marriage should be challenged. In fact, government policy does seem to have shifted somewhat when, partly as a tactical manoeuvre to help the passage of the Civil Partnership Act 2004 and specifically recognising concerns with the needs of economically vulnerable parties, the issue was referred to the Law Commission for England and Wales. This places the ‘realism’ arguments firmly within the reform agenda. However, this article argues that there is a need to look more closely at the arguments used by the ‘realists’, in particular at the evocation of the figure of Mrs. Burns. The more contemporary case of Oxley v. Hiscock is used to both raise questions about the socio-economic profiles of cohabitants, as well to question the presentation of property law as failing women (and family law as offering the protection they need). I argue that feminists should take a cautious approach in relation to the seemingly compelling argument that cohabitants will benefit from the extension of aspects of marriage law to cover property issues at the end of a relationship.     

Patricia Williams: Inflecting Critical Race Theory

Critical Race Theory (C.R.T.) has developed out of a deep dissatisfaction that many black legal scholars in the U.S. felt with liberal civil rights discourse, a discourse premised upon the ideals of assimilation, ‘colour-blindness’ and integration. In addition, the emergence of the Critical Legal Studies movement provided Critical Race theorists with an innovative lexicon and practice which allowed them to develop a critique of traditional race analysis and U.S. law. Patricia Williams has played a key role in the formation of the C.R.T. movement and is concerned with many of the C.R.T. themes: the understanding that traditional civil rights law has benefited whites more than blacks, the ‘call to context’, and the critique of liberalism by the assertion that racism is routine and not aberrational. Following the C.R.T. belief that form and substance are connected, Williams has also extended the boundaries of another C.R.T. theme by (largely) eschewing the conventional genre of legal writing in much of her work, including her two books, The Alchemy of Race and Rights and The Rooster's Egg. This was one of the issues Williams discussed in an interview that commenced when she visited Britain in 1997 to deliver the Reith Lectures. This revised version was published online in August 2006 with corrections to the Cover Date.     

The Perils of Pregnancy Ferguson v. City of Charleston

The United States Supreme Court, in its decision Ferguson v. City of Charleston,ruled that to conduct drug tests on pregnant women in public hospitals and to share that information with the police without obtaining a search warrant amounted to a violation of the women's constitutional rights under the Fourth Amendment. Set within the political context of public policy designed to monitor the activities of pregnant women and the ongoing incidence of prosecutions for ‘foetal abuse’,this note shows how the Supreme Court’s decision, while on the one hand vindicating the rights of pregnant women to be free from unlawful searches upon their person, does not definitively determine the important question of the extent to which the state may regulate women’s behaviour during pregnancy. This revised version was published online in July 2006 with corrections to the Cover Date.     

Wives are Told: Don't Blame the Bank, Sue Your Solicitor: Royal Bank of Scotland v. Etridge (No. 2) and other appeals [1998] 4 All E.R. 705

This case note considers the Court of Appeal decision in Royal Bank of Scotland v. Etridge (No. 2) and other appeals [1998] 4 All E.R. 705. It concerns the familiar scenario of a wife jointly mortgaging (or providing a guarantee for a mortgage of) the family home in order to secure financial support for a business run by her husband. The House of Lords decision in Barclays Bank v O'Brien [1994] A.C. 180 has given rise to a range of litigation in this area, and the spotlight has now moved from the banks to an examination of the quality of advice given by solicitors. The banks have heeded the warnings in O'Brien and now insist that wives are told to obtain independent legal advice. It will be seen that, following Etridge, if the bank tells the solicitor to give the wife legal advice upon undertaking the transaction, that will be sufficient to protect the bank, notwithstanding that the advice was either inadequate or even not actually given. The onus to ensure that proper advice is given is shifted squarely on to the solicitor. The note concludes that the decision is indicative of the shift of judicial opinion against wives seeking to avoid charges over matrimonial homes and in favour of banks. This revised version was published online in August 2006 with corrections to the Cover Date.     

‘Exceptional’ Women,Healthcare Consumers and the Inevitability of Caring

In Rogers, the Court of Appeal held that the decision of Swindon N.H.S. Primary Care Trust to refuse to fund Herceptin for the treatment of Ann Rogers against breast cancer was irrational. The P.C.T. maintained that their decision was not resource driven but based on the fact that Herceptin was, at that time, not licensed by the European Medicines Agency (E.M.E.A.) for use in early stage breast cancer. Yet it was prepared to fund its use in ‹exceptional circumstances’ which could only be based upon the personal situation of the patient. In this note, I focus upon the ‹exceptionality’ argument in the context of the patient as consumer of healthcare and women as carers. I argue for a focus upon caring rather than consumerism in healthcare.     

More than a Woman? Embodiment and Sexual Difference in Medical Law

This article examines law’s representation of embodied female identity in the context of two medical law cases, R. v. Human Fertilisation and Embryology Authority, ex parte Blood andB v. Croydon Health Authority. Through an examination of contemporary critiques of female embodiment, in particular the work of Judith Butler, two discursive strategies are suggested for their potential to reconfigure the sexed subject within legal discourse. Firstly, the act of transgression – the flight from purportedly fixed subject positions – can be read in the case of Bloodand calls into question law’s ability to contain and sustain sexed identity as prediscursive and immutable. Secondly, the exposure of the historical formation of the female subjects of legal discourse, demonstrated through a genealogical reading of B v. Croydon Health Authority, contributes to the feminist theoretical project to destabilise traditional gender categories and enables us to think beyond the category of ‘Woman’. This revised version was published online in July 2006 with corrections to the Cover Date.     

What Makes an Adult? Examining Descriptions from Adolescents of Divorce

The present study examined conceptions of “what makes an adult” within a sample of adolescents (13–19 years) from divorced families. Arnett’s (2003) seven criteria-of-adulthood categories (independence, interdependence, role transitions, norm compliance, biological transitions, chronological transitions, and family capacities) were used as an initial framework for grouping open-ended written responses, while inductive content analysis was employed to analyze all other responses. Although the majority of responses (N=568) fit into Arnett’s categories, 35.2% of responses were coded into eleven newly created categories (e.g., knowledge/wisdom, role model/leader). The present study confirmed that independence qualities are believed to be most important. However, role transitions (e.g., marriage) were considered more significant than in previous research. The qualitative findings and their specific pattern should inform existing quantitative measures of adulthood criteria. Doctoral Student at the University of Arizona. She received her MS in Family Studies and Human Development from the University of Arizona. Her major research interests include parent–adolescent relationships, adolescent development, and the transition to adulthood. Doctoral Student at the University of Arizona. She received her MS in Family Studies and Human Development from the University of Arizona. Her major research interests include adolescent social development; adolescent romantic relationships and risk-taking behaviors; psychological approaches to the transition to adulthood; and developmental methods and statistics Associate Professor at the University of Arizona. She received her Ph.D. in Child and Family Studies from University of Wisconsin–Madison. Her major research interests include post-divorce parent–adolescent relationship, adolescent development and adjustment, and psychological/physical well-being of adults caring for elderly family members Doctoral Student at the University of Arizona. She received her MS in Family Studies and Human Development from the University of Arizona. Her major research interests include parental divorce and its impact on adolescents’ future relationships, adolescent development, and mixed methodology     

Cohabitation Law Reform – Messages From Research

Empirical research in this field has underlined the diversity of the cohabitation population, the existence of the common law marriage myth and the lack of consensus on the best way forward for reform of the law in England and Wales. Against the backdrop of the English Law Commission’s on-going project on cohabitation law, this article will explore the reasons found by recent research for people’s choice of cohabitation over marriage, the interrelationship between commitment and economic vulnerability and the tension in feminist debates as to whether an extension of rights for opposite-sex cohabitants that are analogous to married spouses (either by an opt-in model or opt-out model) might be an appropriate solution or a reinforcement of patriarchal marriage values. It will also consider, given recent research findings and other initiatives aimed at raising awareness about the legal differences between different styles of cohabitation relationship, law’s dual and conflicting role in shaping regulated family structures whilst both protecting vulnerable family members inside and outside such structures and at the same time also offering socially acceptable standards of dispute resolution in this most personal of spheres.     

Getting a `Get' – the Limits of Law's Authority? N. v. N. (Jurisdiction: Pre-Nuptial Agreement) [1999] 2 F.L.R. 745

This note examines the decision of the Family Division of the High Court in N. v. N. (Jurisdiction: Pre-Nuptial Agreement) in which, in the context of Jewish divorce proceedings, the Court found that it had no jurisdiction to order a husband, by specific performance of a marriage agreement, to go through the procedure to obtain a ‘get’ (a hand-written bill of divorcement) allowing his wife to remarry. First, discussion of the case is contextualised broadly within the debate on the (de)merits of employing legal means in order to redress social wrongs. Secondly, adopting a theoretical perspective upon the difficulties involved in using law to achieve social change, the note goes on to examine more specifically why women from minority cultures may choose to go to the law of the dominant culture in order to obtain relief. This revised version was published online in July 2006 with corrections to the Cover Date.     

Seeing the Partner: A Video Recall Study of Emotional Behavior in Same- and Mixed-Sex Late Adolescent Romantic Couples

Fifty-three college-aged same- and mixed-sex romantic couples (83% White, 63% female, mean age, 20.8) engaged in a video recall task in which they rated their own and their partners’ behaviors and emotions. Females reported feeling more connected to partners and reported fewer negative behaviors than males. Females with male partners reported the highest feelings of connection and the fewest negative behaviors. Males with male partners reported the lowest connection and most negative behaviors. Behavioral mirroring and empathic accuracy did not vary by sex of the actor or of their partner. Partners’ self-reported connection and negative behaviors were similar and they accurately perceived each others’ average behavioral and emotional states. The data showed little evidence that partners’ behaviors mirrored one another temporally across time segments, however. Results suggest that college-aged same and mixed-sex romantic couples show greater similarities than differences in functioning.     

Adolescent and Young Adult Mothers’ Relationship Quality During the Transition to Parenthood: Associations with Father Involvement in Fragile Families

Data from the Fragile Families and Child-Well-being Study were used to examine predictors of involvement among fathers of young children (N=2,215) born to adolescent and young adult mothers (ages 14–25; N=2,850). Participants were interviewed immediately following their baby's birth and at 3-years postpartum regarding co-parental relationship quality, fathers’ caretaking behavior (“father involvement”), and fathers’ provision of material support for the child (“in-kind” support). Early postnatal and 3-year postpartum parental relationship quality and father-child cohabitation predicted 3-year father involvement while early father involvement did not. The race of fathers, specifically African American, was associated with lower levels of father involvement. For in-kind support, 3-year father-child cohabitation and 3-year relationship quality were both positively associated with provision of in-kind support. Father's income was not a significant predictor but mother's involvement with a new partner at the 3-year follow-up was marginally significant. Lastly, the race of fathers, specifically African American and Latino, was associated with provision of less in-kind support. Christina B. Gee, Ph.D., Department of Psychology, The George Washington University, Christina Gee's research interests include coparenting and father involvement during transition to parenthood among adolescent mothers and fathers, adolescent mothers’ psychological adjustment, and romantic relationships among at-risk couples. Christopher M. McNerney, B.A., Department of Psychology, George Washington University, Christopher McNerney's research interests include marginalized couples, couples interventions, and family treatments to improve parenting outcomes. Michael J. Reiter, B.A., Department of Psychology, George Washington University, Michael Reiter's research interests include interfaith and interracial romantic relationships within a family systems approach. Suzanne C. Leaman, B.A., Department of Psychology, George Washington University, Suzanne Leaman's research interests include adolescents and young families, minority mental health, low-income communities, and the implications of dating violence for mental health.     

Explaining Sibling Similarities: Perceptions of Sibling Influences

This study examined older siblings’ influence on their younger brothers and sisters by assessing the connections between youth's perceptions of sibling influence and sibling similarities in four domains: Risky behavior, peer competence, sports interests, and art interests. Participants included two adolescent-age siblings (firstborn age M=17.34; second-born age M=14.77) from 191 maritally intact families. Analyses revealed that second-borns’ perceptions of influence were positively linked to siblings’ reports of intimacy and temporal involvement, but not to reports of negativity. Further, sibling similarities were most evident when younger siblings reported sibling influence and when their older brothers and sisters reported high engagement, competence, or interest in a particular domain. Discussion focuses on the challenges of documenting sibling influence and the need to refine its measurement. Shawn D. Whiteman is an Assistant Professor of Child Development and Family Studies at Purdue University. He received his Ph.D. in Human Development and Family Studies from The Pennsylvania State University. His major research interests include how siblings directly and indirectly act as sources of social influence and social comparison within families and how their family experiences foster similarities and differences in their relationship qualities, attributes, and adjustment. Susan M. McHale is a Professor of Human Development and Family Studies at The Pennsylvania State University. She received her Ph.D. in Developmental Psychology from The University of North Carolina at Chapel Hill. Her major research interests focus on children's and adolescents’ family roles, relationships and activities with a particular emphasis on gendered family dynamics and youth's sibling relationship experiences. Ann C. Crouter is a Professor of Human Development and Family Studies at The Pennsylvania State University. She received her Ph.D. in Human Development and Family Studies from Cornell University. Her major research interests focus on the implications of parents’ work situations for parents’ and children's health, psychological development, and family relationships.     

Not `Social Justice': The Housing Association, the Judges, the Tenant and his Lover Fitzpatrick v. Sterling Housing Association [1997] 4 All E.R. 991; [1998] 1 F.L.R. 6 (C.A.); [1999] 4 All E.R. 705 (H.L.)

This note analyses the decision of the House of Lords in Fitzpatrick, which held that gay partners could fall within the legal definition of ‘family’ for some purposes. The note argues that despite the real (if overstated) benefits that this case bestows on gay partners in the form of legal rights, under analysis, the decision self-deconstructs to reveal that it is grounded on the principle of discrimination on the basis of sexuality. However, it is also suggested that the encounter between discursive legal reasoning (underpinned by normative heterosexuality), and aversion of the family which is ‘other’ to this discourse, is one which leaves its mark on law, as the potential undermining or deconstruction of law’s normative assumptions. The note further argues that although this decision is properly seen as a moment in the struggle for gay rights, it also serves as a reminder that the fortunes of critical theories and political movements that seek to challenge the legal paradigm of the white, heterosexual male are inextricably linked. Fitzpatrick, whatever else it is, is also an object lesson in the debt that current campaigns for gay legal rights owe to feminist critiques of, and campaigns that have successfully challenged, the role of this norm in legal discourse. This revised version was published online in July 2006 with corrections to the Cover Date.     

THE SEXUAL SUBALTERN IN CONVERSATIONS “SOMEWHERE IN BETWEEN”: LAW AND THE OLD POLITICS OF COLONIALISM

Ratna Kapur’s recent book entitled Erotic Justice proposes a new politics of postcolonialism whereby the sexual subaltern disrupts the normative principles of the universal, liberal, legal domain. Kapur traces legal strategies regarding censorship, sex-work, homosexuality, sexual harassment, trafficking and migration which travel a treacherous path, countering allegations of ‘unIndian’ and Western practice with cultural histories of ‘authentic’ sexual legitimacies, towards a new politics of desire. Kapur frames her analysis through postcolonial feminist theory as providing a tool for feminist struggle, yet distinct from and disruptive of a liberal project of global sisterhood. This review deeply values the role of the sexual subaltern which disrupts the tenets of a linear, progressive liberalism. Drawing upon Indian feminist and Western feminist perspectives, the review considers how the distinct position of the postcolonial sexual subaltern subject informs the generic role of law as a tool constructing relations of domination regarding gender, sexuality, caste, property and religion. Kapur observes that both the West and the Hindu Right have engaged with liberal legal principles. This engagement, I argue, exposes and informs law as a historical and contemporary tool of gendered legal colonialism, for sisters to disrupt across the Western and Eastern terrains.Review of Ratna Kapur’s Erotic Justice, Law and the New Politics of Postcolonialism, London: Glasshouse Press, 2005, 219 pp., ￡26, ISBN 1-90438-524-9