Irish legislative engagement with abortion law reform has never been framed by recognition of the rights of pregnant women, girls and other people. Rather, where it has taken place at all, it has always been foetocentric and punitive, exceptionalising abortion and conceptualising law as a means of discouraging it. In important ways, the post-repeal landscape has failed to break decisively with this orientation. While in 2018 there was certainly more discussion of women’s entitlement not to be exiled from the country (...) in order to make decisions about reproduction, the framing that dominated legislative and government discourses of abortion law reform was one in which the ‘problem’ being addressed was such that unsafe medication, exclusion from formal medical systems, and the undeserved punishment of people who had received diagnoses of fatal foetal conditions in the course of their ‘much wanted pregnancies’ were the focus. There was little or no engagement in legislative politics with the right to choose, reproductive agency, reproductive justice or the moral standing of pregnant people as ethical decision makers when it came to their pregnancies. As a result, post-repeal abortion law reform was more about managing risk than maximising agency. I will argue that this underpins and partly explains the shortcomings of the new law: the Health (Regulation of Termination of Pregnancy) Act 2018 (‘HRTPA 2018’). Within that new legal regime, I argue, pregnant people continue to lack decisional security when it comes to their reproductive lives and are exposed to significant constitutional and dignitary harms as a result. (shrink)

This article examines two modalities of law, depicted spatially as the vertical and the horizontal. The intellectual background for seeing law in vertical and horizontal dimensions is to be found in much socio-legal scholarship. These approaches have challenged the modernist, legal positivist and essentially vertical view of law as a system of imperatives emanating from a hierarchically superior source such as a sovereign. In keeping with the socio-legal critical tradition, but approaching it from the perspective of legal philosophy, my aim (...) is to address three matters. First, why is vertical law problematic for feminists? Second, what are the theoretical characteristics of law in its horizontal register? Third, how is an appreciation of this ‘flat’ law useful for feminist legal theory and practice? In particular, I consider the ways in which feminist legal theory operating in the horizontal dimension can transgress, without transcending, the vertically determined perimeters of the nation state. (shrink)

Michelle Madden Dempsey’s compelling book sets out a normative feminist argument as to why and when prosecutors should continue to pursue prosecutions in domestic violence cases where the victim refuses to participate in or has withdrawn their support for the prosecution. This paper will explore two of the key aspects of her argument—the centrality and definition of the concept of patriarchy, and the definition of domestic violence—before concluding with some final thoughts as to the appropriate parameters of feminist prosecutorial decision-making. (...) The paper argues that Madden Dempsey could offer a more detailed and nuanced argument about the role that patriarchy plays, particularly its relevance in marking out appropriate cases for pursuit; and that her thesis requires a more convincing exposition of the precise reasons for offering such a narrow account of domestic violence. (shrink)

This article explores the challenge of developing a feminist law reform proposal to decertify sex and gender based on research conducted for the ‘Future of Legal Gender' project. Locating the proposal to decertify within a do-it-yourself, prefigurative approach to law reform, the article asks: Can a law reform proposal be both instrumental and radical? Can a proposal take shape as a viable legislative text and as a more subversive intervention to unsettle and reimagine gender’s relationship to law? This article explores (...) this at two levels. First, it considers the ontological challenges of developing a controversial law reform proposal in terms of its realness (or fictiveness), contours, and temporality, turning to ‘slow law' as a credible way of approaching radical reform. Second, it explores the design-based challenges of legal prototyping—foregrounding questions of legitimacy, participation, and purpose, which arise in designing a decertification law. At the heart of this discussion is the relationship between representation and enactment—between what a proposal presents and what its presentation does and does not accomplish. (shrink)

In an article recently published in the Oxford Journal of Legal Studies, the legal scholar Helen Reece argues that the prevalence and effects of rape myths have been overstated and the designation of certain beliefs and attitudes as myths is simply wrong. Feminist researchers, she argues, are engaged ‘in a process of creating myths about myths’ in a way that serves to close down and limit productive debate in this ‘vexed’ area. In this article we argue that Reece’s analysis is (...) methodologically flawed, crudely reductionist and rhetorically unyielding. We locate Reece’s analysis within the wider theoretical field to show how her failure to engage with feminist literature on rape other than in the narrowest, most exclusionary terms, yields an approach which impedes rather than advances public understanding and panders to a kind of simplistic thinking which cannot begin to grapple with the complexity of the phenomenon that is rape. We conclude by emphasizing the continuing commitment of feminist researchers carefully to theorize and map the fraught field of progressive legal strategizing in order to identify and counter the kinds of risks and shortcomings of political activism with which Reece is rightly concerned. (shrink)

Changes in government policy over the last two decades have seen the traditional goals of criminal justice, namely prosecution and punishment, being replaced by an emphasis on prevention, fear reduction, security and harm reduction. During this time domestic abuse has gained a place on the political agenda, which has resulted in legislative initiatives in the form of civil protection orders across the U.K. which primarily focus on prevention but have also more recently begun to rely on the traditional criminal justice (...) responses should they fail to prevent further abuse. Drawing on international evaluations and a recent study conducted in Scotland (the Scottish study), the article examines whether legislation in the form of civil protection orders has the effect of curtailing the actions of abusers and if not, what occurs when the traditional criminal justice response comes into play. The strengths of civil protection orders and some explanations for the weaknesses of these orders are considered alongside the question of whether there is any value in women continuing to engage with the law in response to domestic abuse. (shrink)

In 1989 Smart problematised law as a masculinist knowledge which disqualified other forms of knowledge, particularly feminism. Twenty-one years later Smart characterises the relationship between law and feminism quite differently. In this account law responds to feminism and outcomes are progressive. Smart suggests that rather than continuing to focus on law’s disciplinary and normalising role, it is more productive to conceptualise contemporary family law as a creative kinning practice. We argue, however, that we must also bring into this account the (...) changes to the state brought about by neo-liberalism. The paper tests these observations about the trajectories of feminism, law and neo-liberalism by reflecting upon our study of the Albert Kennedy Trust (AKT). AKT was established in 1989, in the wake of gay and lesbian resistance to Clause 28, to provide homes with gay and lesbian adults for homeless gay and lesbian teenagers. We are interested in AKT’s shift in its description of the adults’ relationship with the teenagers in their care from ‘brothers and sisters’ to ‘carers’ as it moved from a marginal force to mainstream partner/provider. In this context we explore the complexity of law’s responsiveness to feminism’s dynamism, its contingent recognition of kinning practices and, in the light of neo-liberalism, its continuing disciplinary role. (shrink)

This article argues that there is a lack of theorizing about sexuality within social policy in what is referred to as the mainstream and more surprisingly within feminist social policy. This is particularly surprising given the presence of sexuality in recent as well as past social policies as well as in social theory. The purpose of this article is not merely to argue that a relationship between sexuality and social policy should be examined but rather to explore and outline the (...) specific nature of the relationship and its implications for both sexuality and the discipline of social policy. Specifically, how do prevalent sexuality discourses inform and constitute social policy and what are the social relations involved in this process? Correspondingly, what role does social policy play in constituting what we know to be the ‘truths’ of sexuality? What exclusions and inclusions result from these dominant social relations and discourses when ‘played’ through social policy? That sexuality has failed to be analytically incorporated within the discipline of social policy is addressed. First, reasons for the lack of theorizing are explored. Specifically, the historical development of the discipline and the formation of an implicit consensus about what constitute the real concerns of welfare. Second, there is an examination of the ways feminist social policy has or has not engaged with sexuality. The final section posits an emergent framework for integrating sexuality into social policy analyses and critiques. (shrink)

Currently, abortion can be lawfully performed in China at any gestational stage for a wide range of social and medical reasons. I critically explore the Chinese regulatory model of abortion in order to examine its practical effects on women. Although I focus on the post-Maoist abortion law, I also analyse the imperial Confucianism-dominated regulation and the Maoist ban on abortion in order to scrutinise the emergence of the notion of ‘glorious motherhood’. By examining how ‘glorious motherhood’ is constructed and reinforced (...) in the Chinese family planning context, I argue that the post-Maoist government intentionally made abortion ‘law in the books’ unrestrictive in order to impose its control over female fertility. As a result of this, women are persuaded and even forced to lead a ‘glorious’ maternal life, which means sacrificing themselves for the purpose of achieving the state’s Malthusian and eugenic demographic goals. Furthermore, I argue that, in addition to exacerbating gender oppression, abortion law’s embrace of the idea of ‘glorious motherhood’ also produces ‘group oppression’ of unmarried women and working-class women. (shrink)

The Yugoslav war crimes tribunal convictedthree men for their role in the mass rape ofMuslim women during the conflict inBosnia-Hercegovina. That decision is a landmarkin many respects, but primarily for itsdetermination that the rape of Muslim womenamounted to a crime against humanity. Thiscomment provides an overview of the decision,exploring the significance of recognising rapeas a crime against humanity within the contextof other developments in the area of wartimerape and sexual violence. The comment alsoprovides a brief review of the decision inlight (...) of the author's previous scepticism aboutthe capacity for the Tribunal meaningfully toaddress violence against women. The commentconcludes that while many aspects of thedecision are promising, the war crimes trialitself may offer a limiting arena within whichto address wartime rape. (shrink)

South African law has traditionally denied property sharing rights to people in non-marital intimate partnerships, but a series of new cases has created the possibility of enforcing universal partnership contracts to claim a share in partnership property. However, evidential biases within these progressive cases reflect a historical disdain for women’s contributions to relationships and a widespread reluctance to believe women’s testimony about the existence of agreements to share. These biases bear strong resemblances to the gender stereotypes which have been the (...) subject of feminist critique in rape law. Central to both rape and universal partnerships is the issue of consent or agreement between men and women. This, in turn, depends on social beliefs about male and female entitlements in the realms of sex and intimate relationships. The paper highlights the commonalities and parallels between the legal treatment of women’s evidence about the existence of contracts on the one hand, and the prejudice faced by complainants in rape cases. (shrink)

This article describes political discourse on domestic violence that obscures men's violence while placing the burden of responsibility on women. This perspective, which the author calls patriarchal resistance, challenges a feminist construction of the problem. Using a qualitative analysis of men's and political magazines, the author describes two main discursive strategies used in the resistance discourse: degendering the problem and gendering the blame. These strategies play a central role in resisting any attempts to situate social problems within a partiarchal framework. (...) It is argued that this is a political countermovement to the feminist constructions of domestic violence as opposed to a serious concern about women's violence and male victims. Three major implications this resistance discourse has are the normalization of intimate violence, the diversion of attention from men's responsibility and cultural and structural factors that foster violence, and the distortion of women's violence. (shrink)

This paper explores the visual construction and representation of co-accused women offenders in court drawings. It utilises three case studies of female co-defendants who appeared in the England and Wales court system between 2003 and 2013. In doing so this paper falls into three parts. The first part considers the emergence of the sub-discipline, visual criminology and examines what is known about the visual representation of female offenders. The second part presents the findings of an empirical investigation, which involved engaging (...) in a critical, reflexive visual analysis of a selection of court drawings of three female co-offenders. The third part discusses the ways in which the court artists' interpretation, the conventions of court sketching, and motifs of female offenders as secondary actors, drew on existing myths and prejudices by representing the women as listening, remorseless ‘others’. (shrink)

This article considers the transgressive and transformative possibilities in the sexual silences of the U.K.’s Civil Partnership Act 2004. The absence of a consummation requirement and adultery as a specific ground of dissolution do open up some possibilities but are not unproblematic. These issues are explored in the context of the England and Wales Law Commission’s apparent ‘return’ to a conjugal model in its forthcoming consultation on cohabitation. It is concluded that though the Act may open up possibilities for expanding (...) the legal recognition of relationships beyond those that are sexual, this raises concerns about the further privatisation of care as well as increased state intervention in relationships. Instead, I argue that the purpose and function of relationship recognition should be deconstructed and separated from ideology and romantic mythology about what families and relationships are and should be. If it does wed itself so closely to the conjugal marriage model in the consultation document, the Law Commission will miss a valuable opportunity to ask important questions about the purpose and function of relationship recognition. (shrink)

In Feminism and the Power of Law Carol Smart argued “law must also be tackled at the conceptual level if feminist discourses are to take a firmer root” (Smart in Feminism and the power of law, Routledge, London, 1989, 5). In Canada, the Women’s Legal Education and Action Fund (LEAF) ’tackled‘ the concept of comparison in the age equality case of Withler v Canada, 2008 BCCA 539. Rejecting ’similarly situated ‘(or ’groups‘) comparison as inconsistent with substantive equality, LEAF advocated a (...) “contextual” approach to import gender into the Withler frame. However, LEAF did not identify a male comparator even though all of the plaintiffs were women. Accordingly, it is unclear whether LEAF’s contextual approach obviates comparison, permits comparing some women to other women, or is synonymous with ‘grounds’ comparison. I argue LEAF could have named the patriarchal state as the male comparator in Withler, thereby aligning their contextual approach with ‘grounds’ comparison and offering substantive equality a ’firmer root’. (shrink)

In Feminism and the Power of Law Carol Smart argued that feminists should use non-legal strategies rather than looking to law to bring about women’s liberation. This article seeks to demonstrate that, as far as marriage is concerned, she was right. Statistics and contemporary commentary show how marriage, once the ultimate and only acceptable status for women, has declined in social significance to such an extent that today it is a mere lifestyle choice. This is due to many factors, including (...) the ‘sexual revolution’ of the 1960s, improved education and job opportunities for women, and divorce law reform, but the catalyst for change was the feminist critique that called for the abandonment (rather than the reform) of the institution and made the unmarried state possible for women. I conclude that this loss of significance has been more beneficial to British women in terms of the possibility of ‘liberation’ than appeals for legal change and recognition, and that we should continue to be wary of looking to law to solve women’s problems. (shrink)

In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence (...) is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence.What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. Sociology takes social creation to be the whole of what is and will be. (shrink)

Period-tracking software applications or ‘menstruapps’ have witnessed a surge in popularity in recent years. At the same time, many of them are a part of the adtech industry, using business models that create revenue by selling users’ personal and intimate data. This exploratory article brings menstruapps into a feminist legal debate. It investigates the supranational European legal standards on intimate and sensitive data processing, particularly the General Data Protection Regulation. Scrutinising explicit consent according to GDPR Article 9, this paper, through (...) empirical examples, claims that current legal standards are not enforced. The standards are, furthermore, theoretically insufficient to fully safeguard data subjects’ integrity and autonomy. Instead of abandoning the concept, the article reimagines consent, using a contextual and communicative model where power relations are taken into consideration, building on the feminist concept of freedom to negotiate. (shrink)

COVID-19 has magnified intersecting inequalities that are central to the functioning of capitalism. At the height of the crisis, the value of an economy based on the exchange of goods and services faded away to expose the importance of care across the public and private spheres. Undervalued and underpaid labour suddenly became critical to the survival of many. Drawing on Abolition Feminism, we argue for the need to seize this revaluation of labour to centre nurture and pleasure within our post-pandemic (...) recovery. We apply an Abolition Feminist framework that conceptualises the prison as part of a network of violence that deflects attention from the root causes of harm. We reflect on the development of our Abolition Feminist web platform, Read and Resist!, a space where theory meets reflection on praxis. We consider how activist strategies within Abolition Feminism may support us in reimagining our relationships with law and justice post-COVID-19. (shrink)

American legal scholar MacKinnon held that using consent as the legal criterion to draw the line between rape and intercourse would evade the issue of male dominance in heterosexual relations. Feminist lawyers in the Netherlands and England and Wales translated the insight that rape has to do with inequality between the sexes in alternative definitions of rape. They also struggled to get these alternative definitions incorporated in law. However, in the Netherlands as well as in England and Wales, feminist proposals (...) to broaden the concept of coercion or non-consent to include submission met with serious obstacles from within the legal system. This article describes the process the feminist proposals to redefine coercion or non-consent in rape law went through in the Netherlands and in England and Wales. It tries to answer the following question: To what extent can the obstacles in this process of forming a broad definition of coercion be attributed to what MacKinnon called the inherent fallocentrism of law? (shrink)

Over the last decade, legal recognition of same-sex relationships in Canada has accelerated. By and large, same-sex cohabitants are now recognised in the same manner as opposite-sex cohabitants, and same-sex marriage was legalised in 2005. Without diminishing the struggle that lesbians and gay men have endured to secure this somewhat revolutionary legal recognition, this article troubles its narrative of progress. In particular, we investigate the terms on which recent legal struggles have advanced, as well as the ways in which resistance (...) to the legal recognition has been expressed and dealt with. We argue that to the extent that feminist critiques of marriage, familial ideology, and the privatisation of economic responsibility are marginalised, conservative and heteronormative discourses on marriage and family are reinforced. Our case studies include two pivotal moments in the quest for legislative recognition of same-sex relationships: the Hearings of the Canadian House of Commons Standing Committee on Justice and Human Rights on Bill C-23, The Modernization of Benefits and Obligations Act, in 2000 and the hearings on Same-Sex Marriage in 2003. We find that the debates operated within a narrow paradigm that bolstered many existing hierarchies and exacerbated conditions for those who are economically disadvantaged. (shrink)

In this article the author revisits Carol Smart’s 1989 publication Feminism and the power of law. She engages with Smart’s main claims by way of a number of other thinkers. Following Marianne Constable’s description of contemporary American legal thought as socio-legal, the author tentatively considers if it could be argued that some strains in contemporary legal feminism that adopted a sociological method resulted in a similar absence of justice that concerns Constable. Smart’s caution against the development of a feminist jurisprudence (...) is critically analysed with the benefit of hindsight. Drawing on Deleuze and Guattari, Foucault and Goodrich, the author tentatively considers the becoming of a feminist jurisprudence as a minor jurisprudence. What we most lack is a belief in the world, we’ve quite lost the world, it’s been taken from us. (Deleuze 1995, 176)Sociology takes social creation to be the whole of what is and will be. (Constable 1994a, 589). (shrink)

Recent case law on sexual violence crimes heard before the ad hoc international criminal tribunals and courts, that interpret them in connection with ethnic conflict, raises the question of which acts can be defined as sexual violence. The International Criminal Court, in the situation of Kenya, does not regard acts of forced nudity, forcible circumcision and penile amputation as sexual violence when they are motivated by ethnic prejudice and intended to demonstrate the cultural superiority of one tribe over another. The (...) Court argues that not every act of violence that targets parts of the body commonly associated with sexuality should be considered an act of sexual violence. This recent interpretation of what counts as sexual violence provides another example of the complicity of international criminal law institutions in the ongoing construction process of female subordination. The ICC, in the Kenya situation, implicitly confirms the mutilation of female agency by interpreting penile amputation as a kind of power game between males, and by instrumentalizing the male sexual organ as an indicator of masculinity and manhood. (shrink)

Australian law affirms a binary construction of fertility/infertility. This model is based upon the medical categorization of infertility as a disease. Law supports medicine in prioritizing technology, such as in vitro fertilization, as treatment for infertility. This prioritization of a medico-legal model of infertility in turn marginalizes alternative means of family creation such as adoption, fostering, traditional surrogacy, and childlessness. This paper argues that this binary model masks the impact of medicalization upon reproductive choice and limits opportunity for infertile individuals (...) to create families. While medical technology should be available to enhance reproductive opportunity, infertile individuals will benefit from regulatory change which disentangles the medico-legal construct of infertility as a disease from the desire to create a family. This paper suggests that the medico-legal model of infertility should be reframed to support all opportunities for family creation equally, including non-medical opportunities such as adoption, fostering, and childlessness. (shrink)

Travel for reproductive health care has become a widespread global phenomenon. Within the field, the decision to travel to seek third parties to assist with reproduction is widely assumed to be autonomous. However there has been scant research exploring the application of the principle of autonomy to the experience of the cross-border traveller. Seeking to contribute to the growing, but still small, body of sociological bioethics research, this paper maps the application of the ethical principle of autonomy to the lived (...) experience of infertile individuals who cross borders for reproductive care. It examines their choices as patient, consumer and traveller. It suggests that their experience evidences a contradictory autonomy, which offers them both choice and no choice in their final decision to travel. The paper argues that this lack of meaningful autonomy is enabled by a medicalised framework of infertility which prioritises technology as the cure to infertility. This both shapes expectations of infertile individuals and limits their options of family creation. Ultimately, the paper suggests that sociological bioethics research shows that the liberatory credentials of technology should be questioned, and identifies that this field demands greater scholarly attention. (shrink)

The principle of coverture in Lebanon is defined and examined through a study of the Christian personal status codes. While these do not necessarily reflect the social status of women, they remain highly discriminatory against women in the legal realm. This is seen as the result of archaic laws, the patriarchal social order, and the strong influence of Islam. No change is seen as possible without an attempt at the unification of all personal status codes and their modification or replacement (...) with a uniform civil law to provide absolute gender equality. (shrink)

Inaugural lecture as Professor of Women's Studies in the Social Science Faculty at the University of Utrecht.

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. (shrink)

Proportionality is one of the most important adjudicatory tools, in human rights decision-making, primarily employed to balance rights and interests. Despite this there is very little feminist analysis of its use by the courts. This article discusses the doctrine of proportionality and considers its amenability to feminist legal methods. It relies on theories of deliberative democracy to argue that the proportionality test can be applied in a manner that facilitates a more “interactive universalism”, allows for greater participation in decision-making and (...) enables the courts to be more attentive to the disadvantaged. The commonalities between proportionality and feminist theory are examined, and its contribution to developing and reconstituting a more relational and contextual concept of rights is explored. (shrink)

This article examines the notion of gender neutrality in rape, its meaning and why rape definitions that include females and males as potential victims of rape have become influential in those jurisdictions that have engaged in significant levels of rape law reform over the last four decades. In so doing, several of Annabelle Mooney’s criticisms of gender neutral rape laws, published in an earlier article, will be critically examined. The second part of this article draws on themes that have been (...) identified in the linguistic analysis of rape trials involving female complainants and applies those themes to two cases of rape and sexual assault involving male complainants. Finally, this article examines whether the tactics used by defence lawyers during cross-examination can be said to be uniquely ‘gendered’ or whether similar tactics exist in cases of male rape and sexual assault. Explanations for possible similarities in treatment are also examined. (shrink)

Gender scholars have argued that legal reforms against violence position women as victims in need of state help. Using data collected from 22 months of participant observation with survivors of domestic violence in India, I urge academics to re-theorize the relationship between legal reforms and women’s citizenship during an era of neoliberal governance. Burdened with administrative tasks, Indian law enforcement personnel manage new rights claims by displacing regulatory duties onto survivors and caseworkers. Women who have access to women’s organizations are (...) able to take advantage of these changes and “save” themselves and other women from violence. This article shows how neoliberal governmentality, when combined with women’s organizing, has the potential to restructure women’s relationship to the state. (shrink)

This article aims to contribute to the question of how to conceptualise the relationship between theory and practice in feminist scholarship in law. It looks in detail at the implications of different issues raised in a recent debate between Anne Bottomley and Ngaire Naffine on the existence of a “legal feminist orthodoxy”. I critique the dominance of ethics over politics and join Bottomley in her attack upon “the ethics of respect for the other”, albeit from a different position. I then (...) look at the ways in which the problem of “essentialism” is being rethought from a feminist perspective. (shrink)

How do institutions respond to expert contests over epistemologies of sex and gender? In this article, I consider how epistemological ascendancy in debates over the regulation of women athletes with high testosterone is established within a legal setting. Approaching regulation as an institutional act that defines forms of embodied difference, the legitimacy of which may be called into question, I show how sexed bodies are enacted through and as part of determinations of expertise. I focus on proceedings from 2015 when (...) the Court of Arbitration for Sport was asked to decide whether an Indian sprinter, Dutee Chand, could compete as a female athlete. Despite acknowledging that sexed bodies are unruly, the court ultimately endorsed the use of testosterone as seemingly essential to women’s athletic performance, thereby reasserting a two-category model of biological difference. The legitimacy of these regulatory efforts was established through the concurrent narrowing of expertise and the body, a process that is also revealed to be gendered. (shrink)

This article engages with the vogue for predicting the effects of the Human Rights Act 1998 by focusing on the rape prosecution and trial. The specific interest is feminist scrutiny of the right to a fair trial, particularly the concept of ‘fairness’, in light of the increasing use of disclosure rules (in Canada and England) to gain access to medical and counseling records. Transcending the two contemporary narratives of ‘victims’/women’s rights and defendants’ rights in the criminal justice system, the authors (...) argue for the infusion of the legal debate on disclosure with feminist understandings of wider cultural debates. They suggest that an increased reflexivity about intimacy, publicity and power, leading perhaps to the development of a concept of ‘democratic publicity’ (Fraser, 1997, p. 100), might help to revision the meaning of ‘relevant’ evidence in the rape trial. They also suggest that the wide-ranging cultural debate about memory, truth and history, and the emerging commitment to experimentation in responding to massive, institutionalised human rights violations (including apartheid, war crimes and child abuse) might be of use in deepening current thinking about the rape trial and listening to the ‘voice’ of the complainant. (shrink)

Increasing numbers of women in Turkey are murdered by their relatives, spouses or significant others. The perpetrators plead provocation for their crimes, claiming their actions are provoked by women’s initial acts which they deem to violate societal norms. Pleading provocation enables more lenient sentences. This article investigates the interplay of the legal rules and societal norms on ‘proper’ female behaviour in femicide, based on data drawn from the Journal of Legal Proceedings, which publishes select rulings of the Court of Cassation (...) – the Highest Court in the Turkish legal system – from 2004 to 2018. This article argues that there is a collision between cultural, societal norms and legal rulings in criminal law, and displays linkages between legal processes and social norms which perpetuate patriarchal structures. Accordingly, the article proposes that legal rulings on femicide reflect societal norms and traditional expectations on women’s roles in Turkish society through employing provocation defence. Consequently, law becomes complicit in femicide through provocation, and provocation could be seen as the legal system’s concession to patriarchy. (shrink)

This note examines the British case of Broidy v. St Helen's andKnowsley Health Authority in which Margaret Broidy was unsuccessful in anegligence action against the defendant Health Authority following an emergency caesareanoperation in which a hysterectomy had been performed as `essential'. Of particularfeminist interest is the fact that Broidy's claim for, inter alia, the costs of asurrogacy arrangement to be carried out in California was refused on the basis that it wasnot reasonable – the chances of success of the surrogacy (...) arrangement being deemed tooremote. Set within the context of an increasingly prolific number ofworld-wide surrogacy stories, the Broidy decision is analysed as providing a recentillustration of some of the difficult implications of the reproductive option which surrogacyhas now become. (shrink)

This article examines whether the gender balance on the High Court of Australia has disrupted the gender regime. In so doing it considers the first lead judgments of the three women judges who sat concurrently on the High Court of Australia between 2009 and early 2015. The High Court has adopted an interesting informal practice of welcoming new judges whereby the newest member authors the lead judgment and their judicial colleagues offer a one-line concurrence. The way in which judicial authority (...) is conferred in these judgments is reminiscent of the space in political spheres where an incumbent has their first opportunity to set out their identity and agenda in a speech free of the noise of dissent or debate; the ‘maiden’ speech. In that space the price an incumbent pays for comity is conformity. This article contends that the first judgment is a useful way of situating a discussion about women judges’ contributions vis-à-vis difference by querying the extent to which the woman judge can ever shake-off her status as the maiden bound to conform for the sake of comity. (shrink)

This article focuses on the events surrounding a homosexual Romanian man's attempt to be recognized as a refugee in Britain. Numerous themes emerge such as the nature of authenticity, knowledge, identity, pleasure, evidence and the homosexual refugee as being caught in between two legal apparatuses (that is, fleeing from the hostility of one legal regime and then trying to gain refugee status, and thus legal protection, via a British Immigration Tribunal). In this article, the corporeality and sensuality of legal practices (...) are exposed in the form of `practices of truth'. That is, in this case medico-legal `living individuals' were to perceive, hear, speak, touch and penetrate the `secrets' of Mr Vraciu's body in order to authenticate his sexual identity for the purposes of law. This case also demonstrates the existence of a differend between what I describe as the self-knowledge of homosexuality and the `legal' fact-based, or authorized knowledge of homosexual identity produced through practices of truth. (shrink)

One of the main purposes of feminist jurisprudence is to create or find better ways of being and living for women through the analysis, critique, and use of law. Rich work has emerged, and continues to emerge, from feminist theorists exploring conceptions of the self, personhood, identity and subjectivity that could be used to form a basic unit in law and politics. In this article, it is argued that a strong sense of human subjectivity needs to be retained to enable (...) the human potentiality of women and men to flourish. This can be done in a way which is not essentialist, yet does not dissolve the subject out of existence, issues pertinent to feminist jurisprudence in recent years. (shrink)

This paper argues that cyborg perspectives offer real possibilities for the debate around enforced caesareans and the search for a language to encompass embodied maternal subjectivity. It is suggested, with reference to the fictional narrative of Star Trek, that cyborg figures have the power to disrupt the liberal subject and the body in legal discourse, not least because the plethora of cyborgs challenges simple conceptions of connections/disconnections between bodies. Feminist readings of case law relating to enforced caesarean sections have raised (...) questions about the notion of autonomy at the heart of liberal legalism, have argued that law is complicit with white male techno-medicine's approach to childbirth and focused upon the pregnant woman's lived experience of pregnancy. The recent Court of Appeal decision in St George's Healthcare N.H.S Trust v. S., Regina v. Collins and Others, ex parte S., where the pregnant woman's self-determination was upheld, provides a good opportunity to confront both the liberal story and the idea of connectedness between mother and unborn child. (shrink)

This paper contributes to feminist debates on cohabitation by studying judicial discourse after legal reform. It examines how Canadian judges speak about cohabitation and decide whether cohabitants qualify as “spouses” for the purposes of property sharing. Judges assess cohabitants against an ideal of companionate marriage with gendered and class overtones. A contrasting tendency is to disavow moral judgments by declaring openness to a diversity of relationships. It seems difficult to operationalize cohabitation as a relationship form distinct from marriage. Indeed, the (...) cases undermine assertions that reform makes married couples and cohabitants equal. Efforts to “modernize” family law appear to give new life to traditional ideals of the good marriage. (shrink)