To Pay Suspicious Attention: Following the Weave of ‘Mixed Logics’ in Women’s Ethical Decision Making

This article explores areas of law loosely within English equity and trusts law that have not conventionally been subject to feminist debate, and within the context of a discussion about feminist method. The particular areas examined are whistleblowing and trustees’ powers of investment, each of which calls for consideration of decision-making processes which have an ethical content. These sites are chosen because they take debate outside the all too familiar locations of woman or ‘the body of woman’, including the family home, where feminist analysis in relation to equity and trusts tends to stray. In exploring these chosen fields, Hobby’s (Feminist Perspectives on Equity and Trusts, Cavendish Publishing, 2001, pp. 219–255) critique of gender dimensions in relation to whistleblowing and Dunn’s (Feminist Perspectives on Equity and Trusts, Cavendish Publishing, 2001, pp. 179–196) account of women trustees’ investment decisions are evaluated and developed. The debate within feminist legal criticism of the possibility of integrating an ‘ethics of care’ and an ‘ethics of rights’ is acknowledged. Whilst acknowledging of the difficulty of adopting an approach that recognises ‘mixed logics’, it is concluded that women (and men) do integrate the ethics of care and the ethics of rights in their decision-making. It is argued that the effort should be made to trace the specific weave in particular circumstances, thereby paying suspicious attention to the values that underlie courts’ analyses of ethical choices.     

Feminist Activism,Third Party Interventions and the Courts

This article discusses feminist engagement in the judicial process in the light of the changing constitutional landscape in the U.K. It considers feminist activism in the courts and the potential that third party interventions provide for feminists to influence judicial decision making under the Human Rights Act 1998. The impact of the intervention by women’s groups in the case of R. v. A. (No. 2) is discussed. Despite the disappointing decision, it is argued that the intervention was a worthwhile endeavour. Third party interventions are important if feminists are to hold on to the gains they have made through the legislative process. Interventions also offer an opportunity to build a litigation strategy that will help shape the development of the case law under the Human Rights Act 1998.     

A Defining Moment: A Feminist Perspective On The Law of Sexual Harassment in the Workplace in the Light of the Equal Treatment Amendment Directive

This article considers, from a feminist perspective, the introduction of the European Equal Treatment Amendment Directive (E.T.A.D.) and its impact on the law of sexual harassment in the United Kingdom. Since feminists identified sexual harassment as a problem for women in the 1970s, feminist legal scholars have focused their attention on the law as a means of redressing it. Bringing claims in the U.K. has been difficult because of the absence of a definition of sexual harassment and reliance in the Sex Discrimination Act 1975 on a comparator approach. These problems are illustrated by the recent House of Lords decision in Pearce v. Governing Body of Mayfield Secondary School(2003). The failure of the House of Lords in Pearce to understand sexual harassment as an issue of substantive equality for women makes the introduction of the European law all the more the pressing. The author discusses the implications of the changes embodied in the E.T.A.D. in the light of feminist theory. She argues that the changes envisaged constitute welcome developments which will make it easier to remedy workplace sexual harassment. However, it is also likely that problems will remain for women in establishing sexual harassment claims, particularly if concepts of reasonableness and unwelcome behaviour continue to form part of the legal definition. This revised version was published online in July 2006 with corrections to the Cover Date.     

‘Lovers of liberty’?Prostitution and the Politics of Choice in Emma Donoghue’s Slammerkin

This article explores the way in which Emma Donoghue’s novel Slammerkin (2000) reflects long-standing feminist debates surrounding prostitution. We argue that not only does Donoghue’s portrayal of prostitution resist the pro versus anti dichotomy in which feminist perspectives on sex work are so often narrowly situated, but Slammerkin also foregrounds the complexity with which the politics of choice intersects with women’s decision to sell their bodies.     

Prostitution, morality crusades and feminism: German-Jewish feminists and the campaign against white slavery

Feminism did not come easily to Germany's middle-class Jewish women. Moral outrage against white slavery and prostitution, however, led many religious housewives to join the Jüdischer Frauenbund (League of Jewish Women), a Jewish feminist organization. Their attitudes towards their ‘victimized’ or ‘erring young sisters’, their motivations for fighting white slavery, and the tactics they employed in their campaigns are examined in this essay. While they emphasized the virtues of purity and invoked Jewish ethical codes, theirs was not simply a morality crusade. The feminist founders of the Jüdischer Frauenbund (JFB) struggled to persuade their more conservative followers that the sexual abuse of women was linked to their inferior status in German society and Jewish culture. These leaders successfully convinced JFB members to take a giant step beyond their traditional family roles and charitable activities in order to challenge sexism. Thus the fight against white slavery became instrumental in serving wider feminist goals.     

Gender and the law of provocation in the long twentieth century

ABSTRACT

Provocation was an important common law doctrine, separating murder from manslaughter: a matter of life and death. It was particularly significant in the context of ‘domestic violence’. This article examines the doctrine as a lens through which to view gender relations in the long twentieth century. The doctrine developed from its origins in the early modern period until mid-twentieth century. Throughout this lengthy period provocation was narrowly confined for both genders. However, case law developments in mid-twentieth century gave rise to a doctrine which was unforgiving for abused women. At about the same time, statutory and case law changes produced a much broader partial defence of provocation available to men who had killed their wives. It was not until the very end of the century, and the beginning of the twenty-first century, that a more gender-neutral concept of provocation began to emerge as a result of feminist campaigning.     

The public and the private in architecture: A feminist critique

Hanna Arendt's discussion of public and private derives more or less intact from Aristotle and forms a principal philosophical basis for mainstream architectural theory exemplified in the writings of Kenneth Frampton. An eminent architectural historian, teacher, and critic, Frampton proposes that the discipline of architecture is in crisis today because of an unprecedented enphasis on ‘the life-bound values of animal laborans,’ and because ‘it is largely divested of culturally valid institutions for its embodiment,’ which institutions, he suggests, find their archetypes in the agora of the ancient polis. The author criticizes Frampton's position from the perspective of feminist philosophy, based on Elshtain and Pitkin, and advocates some reformulation of the traditional hierarchical relationship between the two domains. The last section of the article locates architectural work within this feminist perspective: in programme, precedents, and formal expression. ‘The Ethical Polity’ provides a potential vehicle for architectural exploration predicated on the restructuring of public and private.     

Gender Mainstreaming Strategies in the E.U.: Delivering on an Agenda?

Recent years have witnessed the emergence of anew policy style within the E.U., characterized by voluntary policy transfer between member states and soft policy instruments including exchange of best practice, targets, benchmarking and national league tables. This article examines how these methods have been used by gender mainstreaming advocates and evaluates the impact of this strategy to-date upon E.U. policy-making procedures and outputs. It is argued that mainstreaming has provided new opportunities for feminists to influence the E.U. policy agenda, but that the impact of mainstreaming varies between sectors and member states. The concluding section considers the implications of E.U. mainstreaming from the perspective of the European Women's Lobby(E.W.L.). This discussion highlights the potential opportunities and risks for feminists of mainstreaming. This revised version was published online in July 2006 with corrections to the Cover Date.     

Special Issue: Gender,Sexuality and Human Rights

This brief article introduces a special issue of Feminist Legal Studies addressing gender, sexuality and human rights, and comprising papers drawn from an E.S.R.C.-funded workshop held at the University of Kent in June 2004 on the theme of “Gender-Auditing the Human Rights Act”. The article begins by situating the themes of the special issue within the broader context of feminist engagement with rights discourse. It goes on to consider the introduction of the Human Rights Act 1998 into the U.K. with a view to assessing its implications in terms of engendering a positive legal and political culture for equality-seeking initiatives. The article concludes with a survey of the contributions to the special issue, highlighting the possibilities for feminist theory and strategy posed by a wider intersectional engagement with rights issues.     

Sir Mark Potter And The Protection Of The Traditional Family: Why Same Sex Marriage Is (Still) A Feminist Issue

In Wilkinson v. Kitzinger, the petitioner (Susan Wilkinson) sought a declaration of her marital status, following her marriage to Celia Kitzinger in British Columbia, Canada in August 2003. The High Court refused the application, finding that their valid Canadian marriage is, in United Kingdom law, a civil partnership. In this note, I focus on Sir Mark Potter’s adjudication of the human rights issues under Articles 8, 12 and 14 of the European Convention on Human Rights (E.C.H.R.), highlighting his restatement of the ideology of the ‹traditional’ family as natural, normative and desirable. I argue that this case shows that the exclusion of same sex couples from marriage is a feminist issue, because denying same sex couples access to marriage works to sediment patriarchal ideas and re-inscribe gender roles within the family. Wilkinson v. Kitzinger [2006] E.W.H.C. (Fam.) 2022; [2006] H.R.L.R 36     

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.     

Dialogue, distance and difference: Feminism in contemporary japan

In this article, I examine the ways in which women’s groups in Japan have attempted to deal with issues of difference prompted by the co-existence of residents of different ethnicities in contemporary Japan, and the new issues raised by labour migration in the context of globalization of economies and labour markets. Japan’s place in contemporary East Asia can be clarified by using the term colonial modernity, to refer to Japan’s early 20th-century history; and the term postcoloniality to refer to the legacy of the colonial project in the culture of the metropolitan society. In representations of Japan’s contemporary “Others,” notions of gendered difference interact with representations of ethnic and cultural difference. Contemporary attempts to deal with these issues will be placed in the context of several decades of feminist activism in Japan.     

Extending the Reach of Human Rights to Encompass Victims of Rape: M.C. V. Bulgaria

This note analyses a recent case of the European Court of Justice in which the applicant, a 14-year old rape victim, alleged that Bulgarian criminal law violated her rights under Articles 3 and 8 of the European Convention of Human Rights in pursuing a practice of only prosecuting rape where there was evidence of the use of physical force and active resistance. In upholding the applicant’s claims, the Court re-affirmed the positive obligation on states to adopt measures to ensure that fundamental rights under the Convention were secured. In particular, in the case of rape, this required the enactment and application of criminal laws effectively prescribing all acts of non-consensual sex and not just those involving physical violence. In this way the Court affirmed not only that rape was, in essence, a violation of personal sexual autonomy but also that legal systems which failed adequately to protect against all forms of rape risked operating in breach of Convention obligations.Application no. 39272/98, 4 December 2003.     

``That Woman Is a Woman!' the Case of Bellinger v. Bellinger and the Mysterious (Dis)appearance of Sex: Bellinger v. Bellinger [2003] 2 All E.R. 593; [2003] F.C.R. 1; [2003] 2 W.L.R. 1174; [2003] UKHL 21

In the case of Bellinger v. Bellingerthe House of Lords has for the first time exercised the power to make a declaration of incompatibility under s. 4 of the Human Rights Act 1998, finding that U.K. law on marriage is in breach of Articles 8 and 12 of the European Convention on Human Rights. This case note argues, however, that despite this decision, and despite also recent judgements of the European Court of Human Rights upholdingthe rights of transsexual people, the principles applied in Bellingerdemonstrate that judicial discourse on transsexuality remains bound within the heterosexual and biological framework of Corbett v. Corbett.     

European law as a lever for female workers at the national level: Belgium and the Equal Pay Directive of 1975

‘Equal pay for equal work’ is a longstanding feminist claim. In this regard, the 1975 Equal Pay Directive of the European Economic Community has generated momentum for women at the national level. Based on the Belgian case, we explain how national actors – and more specifically trade unions and their women’s committees – have used European law to foster wage equality. Despite the existence of binding norms since the 1950s, this principle of equal pay has been poorly applied. The implementation of the directive in the Belgian neo-corporatist institutional framework has given trade unions the possibility to secure an extensive interpretation of the directive’s general provisions. The assumption driving this paper is that this directive has generated momentum for change – though this is not a synonym of ‘a miracle solution’ – in Belgium regarding wage equality. More fundamentally, this study is about the intertwining of European and national laws and the way in which European norms can offer instrumental opportunities to national actors to impact their domestic polity and policies, here on social and gender matters.     

Selfless androgyny: Gregory Rose as ‘virile woman’ in Olive Schreiner's the story of an African farm

While Lyndall, the feminist heroine of Olive Schreiner's The Story of an African Farm, articulates and enacts a critique of the position of women in male-dominated society, Gregory Rose's transformation from a vain and self-centred man into a nurturing female nurse is an important part of Schreiner's feminist vision. His womanhood both complements and critiques Lyndall's ‘virility,’ allowing Schreiner to present a fictional version of her theoretical ideal of selfless androgyny.     

The Power of Feminist Judgments?

Recent years have seen the advent of two feminist judgment-writing projects, the Women??s Court of Canada, and the Feminist Judgments Project in England. This article analyses these projects in light of Carol Smart??s feminist critique of law and legal reform and her proposed feminist strategies in Feminism and the Power of Law (1989). At the same time, it reflects on Smart??s arguments 20?years after their first publication and considers the extent to which feminist judgment-writing projects may reinforce or trouble her conclusions. It argues that both of these results are discernible??that while some of Smart??s contentions have proved to be unsustainable, others remain salient and have both inspired and hold important cautions for feminist judgment-writing projects.     

Harm,Consent and the Limits of Privacy

Within the context of U.K. law, the right to respect for private life, articulated in Article 8 of the European Convention on Human Rights, and acknowledged more opaquely in domestic legislation and case law, is one whose scope is unclear. Nowhere is this brought into sharper relief than in cases where conduct which manifests a person’s sexual identity, or concerns her intimate relations with others, is prima facie criminal. In this essay I attempt, through a discussion of cases in which injury is caused in the context of relationships experienced inter-subjectively as private, to explore the contexts in which the law is prepared to legitimate that inter-subjective experience, and where it is not. Using cases in which injury has been caused purposively (in S/M sex), and incidentally (through the reckless transmission of HIV during sexual intercourse), the essay argues that the law is prepared to respect the right to respect for private life only in so far as the private life concerned is one which reinforces traditional gender roles and relationship types; in short, a life that one would be prepared to live publicly.     

“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.     

"Sort of part of the women's movement. But different": mothers' organisations and Australian feminism

In spite of the ‘maternal turn’ in feminist theory, at the level of policy and practice feminism has neglected the politics of motherhood. This article explores the ambivalent relationship between the Australian women's movement and mothers' organisations formed to contest the management of childbirth and lactation. It argues that the advent of a ‘politics of difference’ allows greater acceptance of seemingly non-feminist positions on maternity and recognition of the role played by childbirth reformers in effecting social change. It examines Australian feminist attitudes to motherhood before discussing the response to feminism of women's groups which saw themselves as possibly part of a wider women's movement, but ‘different’ from mainstream feminism. A strong familial orientation was often contradicted by the everyday lives of activist women, who gained new skills and self-confidence in a significant challenge to medicalised reproduction.