Gender and the Law Blog

A New Criminal Offense of "Intimate Intrusions" for Online Abuse

Clare McGlynn, Towards a New Criminal Offence of Intimate Intrusions, Feminist Legal Studies, 2024

This article suggests a new approach to tackling women’s experiences of harm and abuse, particularly online, namely a criminal law of ‘intimate intrusions’. It seeks to reinvigorate Betsy Stanko’s (1985) concept of intimate intrusions, developing it particularly in the context of the ever-increasing prevalence of online abuse against women and girls, as well as establishing how this conceptualisation might manifest in law reform. Intimate intrusions, it is argued, provides a valuable umbrella concept that may better encompass both the range and nature of existing harms, as well as, crucially, the yet-to-be-imagined modes of abuse. Further, in suggesting a new criminal offence of intimate intrusions, this article challenges the common process of piecemeal criminal law reform, with each new manifestation of abuse resulting in a specific offence tackling that specific behaviour. While such an approach provides new redress options, it remains limited. Following an examination of recent reforms in Northern Ireland, where three distinct new criminal offences were adopted covering downblousing, upskirting and cyberflashing, this article suggests that the concept of ‘intimate intrusions’ provides a better foundation for a new criminal offence and outlines its potential nature and scope.

Call for Papers: International Society of Family Law, Hosted in Philadelphia on June 16

International Society of Family Law – North American Regional Conference
Family Law in an Age of Political Contestation

Philadelphia, June 16, 2025

CALL FOR PAPERS

The ISFL North American Regional Conference will take place at the Temple University Beasley School of Law in Philadelphia on June 16, 2025. The theme of the conference is “Family Law in an Age of Political Contestation.”

We encourage papers that approach family law from the lens of critical theory, intersectional analysis, abolitionism, and/or law and economic inequality. We especially welcome proposals that focus on the impact of the current political moment on families who are vulnerable or otherwise marginalized due to their members’ identities (LGBTQIA+, immigration status, race, disability, income status, for example).

Please submit abstracts of maximum 1000 words here. When doing so, please also include your current position and institutional affiliation. The deadline for submissions is February 1, 2025. We will notify those whose papers have been selected shortly thereafter.

You are also invited to attend without giving a paper. If you wish to do so, please check the box next to the “Attend, but not present scholarship” option at the submission website. If you are interested in serving as a moderator or commentator on a panel, please register for the conference and check the appropriate box on the submission form by February 1, 2025.  

There may be a modest registration fee (no more than $30). Unfortunately, we cannot offer any financial support for our speakers, but we nevertheless hope that we will be able to welcome you in Philadelphia in June 2025. Please email [email protected] with any questions.

Conveners:
Prof. Sarah Katz (Temple University School of Law)
Prof. Dara Purvis (Temple University School of Law)
Dean Rachel Rebouche (Temple University School of Law)
Prof. Emily Stolzenberg (Villanova University School of Law)

Women's Legal History Podcast, Key Legal Events During the Interwar Years

Legal History Podcast: Not For Want of Trying

A legal history podcast that uncovers key events in women's legal history in the UK during the interwar years.

A Published Interview with Loretta Ross

The online periodical, Feminist Approaches in Culture and Politics, has published On Global Reproductive Justice: An Interview with Loretta J. Ross. The interview was conducted by Seda Saluk. Two powerful passages of Ross's remarks are excerpted below: 

When we talk about a global scale, I invite people to take a meta-view. The people who oppose human rights only have two things to their advantage: lies and violence. On our side are truth, evidence, history, and, most of all, time. I don’t believe that as powerful as these authoritarians see themselves, they don’t have the power to roll back time, deny the truth, bury all the evidence, or make people forget their history. They are trying their best to negate those existential forces that they cannot control.

* * *

 

One thing we say in the civil rights movement is that don’t imagine that you are the entire chain of freedom. The chain of freedom stretches backward toward all of your ancestors and forward toward all of your descendants. Your only job at this moment is to make sure the chain of freedom doesn’t break at your link. Don’t give up. Don’t lose hope. Don’t fail to step up to the challenge of keeping the chain of freedom intact, even though you may not be alive to see the outcome. 

New Book about "Birth in Times of Despair"

The N.Y.U. Press has published Carina Heckert's book "Birth in Times of Despair: Reproductive Violence on the US-Mexico Border." The book description is excerpted below:

In El Paso, Texas, the racist undertones of anti-immigrant sentiment have contributed to various forms of violence in the region, including the 2019 mass shooting that was the deadliest attack on Latinos in US history. As the community continued to mourn this tragedy, the COVID-19 pandemic unleashed yet another set of economic, social, and public health catastrophes that were disproportionately felt within the border region.

In Birth in Times of Despair, Carina Heckert traces women’s emotional experiences of pregnancy, birth, and the postpartum period in the midst of a series of longstanding and ongoing crises in the US-Mexico border region. Drawing from interviews, surveys, and medical records of women who gave birth during an intense period of sociopolitical crisis, she examines how limited access to health care, inhumane immigration policies, and exposure to an array of harmful social environmental circumstances serve as sources of intense harm for pregnant and recently pregnant women. In so doing, Heckert reveals how these experiences serve as a profound critique of policies that continue to fail to protect women and their families. She concludes with suggestions for practical, humane, and urgent policy changes to alleviate the needless suffering of this vulnerable group.

With its comprehensive portrait of the abysmal physical and mental health outcomes pregnant women face within the border region, Birth in Times of Despair expands our understanding of how obstetric violence is enhanced by the structural violence of the state, and unveils the urgency to ameliorate the harm caused by current immigration policies. 

Intersectionality and Women's Participation in Peace Negotiations

Jenna Sapiano, Gina Heathcote & Xianan Jin, Intersectionality and Women's Participation in Peace Negotiations, forthcoming International Affairs (2024) 

The Women, Peace and Security resolutions have consistently called for women’s increased participation at all levels in institutions and mechanisms for preventing, managing and resolving conflict. Despite a long history of feminist interventions to disrupt categories of gender as a stagnant, ahistorical or geographically consistent structure, rationales for women’s inclusion continue to rest on problematic narratives and assumptions. We draw on twenty-nine interviews with practitioners whom we asked to speak about their experiences in peace negotiations and the expectations placed on women involved in these processes. The problematic narratives and assumptions we identify on the basis of these interviews and academic literature have the effect of diminishing women’s agency and, thus, their ability to participate in peace negotiations on their terms. Women contribute positively to the durability of peace and the inclusion of gender provisions in agreements. Still, when women’s identities are constructed as one-dimensional, the benefits of women’s inclusion remain paradoxically a cause for celebration and a partial gain. In this article, we apply theories of intersectionality, informed by Black and African feminisms, to expose women’s subject positions that may be made invisible because of assumptions that continue to be associated with calls for women’s participation in peace negotiations.

Gendering the New International Norms on Artificial Intelligence and Emerging Technologies

Rangita de Silva de Alwis, Gendering the New International Norms on Artificial Intelligence and Emerging Technologies  

A flurry of landmark international digital rules is soon to make its debut in the international law arena. At the Summit of the Future, in September 2024, the Secretary General plans to announce the Digital Global Compact 2023, an ambitious vision to close the various digital divides and to fast track progress toward the United Nations (UN) Sustainable Development Goals.  In March of 2024, the UN General Assembly adopted the first ever UN General Assembly Resolution on Artificial Intelligence (AI) for Sustainable Development.  Five months later, in August of 2024, the United Nations approved the draft of a global cybercrimes treaty; this historic draft agreement, coined the United Nations Convention Against Cybercrime, will go before the UN General Assembly in this upcoming fall.  

Last year, ahead of the 2023 Summit of the Future, the Secretary General introduced his Agenda for Peace, committing to “Transforming the gendered power dynamics in peace and security.”  In line with his vision, together, these new and evolving frameworks provide the first history-making normative landscape for new technologies at the global level. This Article critically examines the role of gender in these burgeoning frameworks as pivotal to elements in a rapidly changing digital ecosystem. While the current normative foci overlook important aspects of gender equality, they also elide the rise of ChatGPT and other Generative AI and their impact on gender. The primacy of gender equal participation in digital and cybersecurity governance should be a pillar of the new global digital order. 

Invitation to Online Book Launch of Feminist Legislation Project on Sept. 25

Below is an invitation to a book launch of the Feminist Legislation Project from co-editor Becky Batagol. More information about the book project is here:   

Please come to the launch of the Feminist Legislation Project: Rewriting Laws for Gender-Based Justice edited collection created and edited by me, Professor Kate Seear, Assoc Prof Heli Askola and Dr Jamie Walvisch.

This book is the result of 7 years of Monash-led collaborative feminist work across Australia by leading law academics, lawyers, activists and those with lived experience of the problems we identify. We decided to go past the usual academic criticism of law and to actually show what legislation could look like if its concern was to create justice for women and those who experience gender-harm. 

Each chapter contains a short piece of legislation – proposed in order to address a contemporary legal problem from a feminist perspective. These range across criminal law (sexual offences, Indigenous women’s experiences of criminal law, laws in relation to forced marriage, modern slavery, childcare and sentencing), civil law (aged care and housing rights, regulating the gig economy; surrogacy, gender equity in the construction industry) and constitutional law (human rights legislation, reimagining parliaments where laws are made for the benefit of women). The proposed laws are, moreover, drafted with feedback from a senior parliamentary draftsperson (providing guidance to contributors in a personal capacity), to ensure conformity with legislative rigour, as well as accompanied by an explanation of their reasons and their aims. Although the legislation is Australian-based, the issues raised by each are recognisably global, and are reflected in the legislation of most other nations.

This is the world's first feminist legislation project and we think its methods can be applied worldwide. It also has great potential to lead to law reform as the book contains 16 proposals for law reform, complete with second reading speech and legislative drafting.  It will appeal to scholars of feminist legal studies, gender and the law, gender studies and others studying or working in relevant legal areas.

 

The book launch, which will take place at the Sky Room (Monash Business School), Level 14, at 30 Collins Street in Melbourne's CBD, on Wednesday 25 September, 5-7pm. We will organise Zoom access for those who can't attend in person. The invitation is attached and you can RSVP here by 16 September.

 

The book is open access, meaning it is free, not behind the usual academic paywalls and available to read and download here.

 

An International Analysis of Online Representation of Medical Risks and Incentives in Egg Donation

Lara Jacxsens and Catherine Coveney, et. al.  have published The representation of medical risks and incentives concerning egg donation: an analysis of the websites of fertility clinics of Belgium, Spain and the UK in volume 27 of Human Fertility (2024). The abstract is excerpted below. 

Considering the growing demand for egg donation (ED) and the scarcity of women coming forward as donors to meet this demand, scholars have expressed concerns that clinics may (initially) misrepresent risks to recruit more donors. Additionally, (non-)monetary incentives might be used to try to influence potential donors, which may pressure these women or cause them to dismiss their concerns. Since the internet is often the first source of information and first impressions influence individuals' choices, we examined the websites of fertility clinics to explore how they present medical risks, incentives and emotional appeals. Content Analysis and Frame Analysis were used to analyze a sample of Belgian, Spanish and UK clinic websites. The data show that the websites mainly focus on extreme and dangerous risks and side effects (e.g. severe OHSS) even though it is highly relevant for donors to be informed about less severe but more frequently occurring risks and side effects (e.g. bloating), since those influence donors' daily functioning. The altruistic narrative of ED in Europe was dominant in the data, although some (hidden) financial incentives were found on Spanish and UK websites. Nonetheless, all information about financial incentives still were presented subtly or in combination with altruistic incentives.

 

 

The New Gender Perspective of Intersectional Autonomy in International Human Rights

Rose Celorio, The New Gender Perspective: The Dawn of Intersectional Autonomy in Women’s Rights,  
25 Chi. J. of Int’l L. 67 (2024)

International human rights jurisprudence has increasingly mandated state action which integrates a gender perspective, taking into consideration the discriminatory norms, harmful social practices, stereotypes, and violence that women have and still suffer. A range of supranational bodies have issued case decisions promoting the adoption of gender-sensitive legislation, policies, programs, and the establishment of administration of justice systems well-trained and equipped to address women’s rights violations. This article discusses how the conception of this gender perspective has evolved over time and is now centered on the pursuit of autonomy for women. Autonomy is presented as a key ingredient to ensure due respect for women’s self-direction, agency, and dignity. This evolving approach is a move towards intersectional autonomy, which advances the notion that women should be the sole architects of their life plans, based on their identities and different experiences, and meaningfully participate in their societies. Creating the conditions for free and informed choices underpins current women’s rights jurisprudence. This is a break from historical notions of human rights protection solely focused on women as victims, as members of a homogenous group, and a limited binary perspective to their rights. This article discusses illustrative decisions of this tendency from the European Court of Human Rights, the Inter-American Commission and Court of Human Rights, the United Nations Committee on the Elimination of Discrimination against Women, and the United Nations Human Rights Committee, among other bodies. This article further proposes that intersectional autonomy is treated and interpreted in the future in international jurisprudence as a right, with independent content, offering guidance to states on needed laws, policies, programs, and services at the local and national levels. This human rights development is presented as essential for international law standards concerning women to be impactful and truly transformative at the national level. This article analyzes the main elements of the right of women to intersectional autonomy, and states’ negative and positive obligations in its fulfillment. The author is currently pursuing a line of research exploring contemporary understandings of the international human rights of women, and how existing legal standards should evolve based on modern scenarios and realities. This article represents a contribution to this line of scholarship. It aims to increase understanding of the connection of the concepts of intersectional discrimination and autonomy, how they can be analyzed by global and regional human rights jurisprudence, and their promise to enhance effectiveness in international law concerning women.

Gender and Competition Law: An Exploration of Feminist Perspectives

Giorgio Monti has posted on SSRN "Gender and Competition Law: An Exploration of Feminist Perspectives." Excerpts of the introduction are presented below: 

This essay is motivated by the outcomes of an OECD project on gender inclusive competition policy.  * * * [T]his paper explores whether a feminist jurisprudence of competition law may emerge. Beyond expanding upon the liberal feminist approach (implicitly espoused by the authors of the OECD project), the findings from using alternative feminist perspectives to consider competition law reveal some fundamental flaws in the legal system and concerns about the design of the economic system, neither of which can be addressed by tinkering with competition policy. * * *

The essay is structured in the following way: in section 2 the OECD studies are presented and a feminist assessment is provided. In section 3 these studies are shown to belong to a tradition of liberal feminism and consideration is given if the liberal paradigm might be extended to address a wider range of feminist concerns. In section 4, other feminist approaches are examined to identify alternative directions for competition law. A general reflection on this exploratory exercise is found in section 5.

 

* * * [First,] The purpose of the essay is to speak to any jurisdiction and to explore how far general competition law principles might be transformed. Second, the purpose is to provide concrete illustrations of how a feminist perspective might be used to construct competition law. No feminist scholar has, to my knowledge, engaged with competition law. Many have criticized the role of competition as an economic institution. This work is not relevant here because competition law is designed to place limits on the operation of markets. Third, feminist literature is rich and for reasons of space some of the nuances among scholars are glossed over in favor of an approach that allows the reader to see certain key feminist claims and their possible practical implications. * * * This essay instead experiments with how far feminism can engage with the existing legal order so as to transform it. The purpose of the essay is to invite a fuller exploration of how far feminist perspectives can be a helpful addition to competition law analysis. It is hoped that by offering concrete examples to tease out the normative prescriptions that flow from diverse feminist approaches, that these stimulate discussion about the merits of the proposals and create space for considering alternatives. The reader will see that some of the possible feminist claims suggested here go beyond antitrust as we know it. * * * A feminist perspective necessarily requires a reorientation of what law is, reshaping it to reflect women and their realities. 

Daniel Del Gobbo on "Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness"

Daniel Del Gobbo has posted Reckoning with Queer History: The Canadian 'LGBT Purge' Case and the Limits of Forgiveness on SSRN. This article is forthcoming in Volume 62 of the Osgoode Hall Law Journal (2025). The abstract is excerpted here: 

The Canadian government has a long history of regulation, exploitation, and violence against lesbian, gay, bisexual, trans, queer, and two-spirit (LGBTQ2) people. One of the most painful chapters in this history is the “LGBT Purge,” a term that refers to the expulsion of LGBTQ2 service members and employees from the Canadian Armed Forces, Royal Canadian Mounted Police, and federal public service between 1955 and 1992. The LGBT Purge was the subject of a class action lawsuit filed in 2017 that resulted in a settlement agreement in 2018. On a parallel track to the settlement, Prime Minister Justin Trudeau issued a formal apology for the government’s history of state-sponsored discrimination against LGBTQ2 people in 2017. In this article, I consider these events from a legal historical and queer theoretical perspective. I focus on the potential of the settlement to promote reconciliation with LGBTQ2 people, contextualizing the settlement in light of neoliberal and homonationalist pressures on the class members to settle the past and forgive legacies of homophobic violence that continue to be felt today. Praiseworthy as the settlement terms might be, I conclude by arguing that forgiving the government’s history of discrimination against LGBTQ2 people is an historical impossibility.

Is International Criminal Law Feminist?

Margaret M. Deguzman & Rachel Lopez, Is International Criminal Law Feminist?, Oxford Handbook on Women and International Law (forthcoming) 

The future of international criminal law as a feminist project at its essence turns on one central question: Does international criminal law advance feminist goals? To answer this question, this chapter charts the landscape of feminist critiques of international criminal law, identifying two schools of feminist thought. On one hand, there are those who believe in the enterprise of international criminal law as a method of advancing women’s rights and on the other, those who reject the enterprise believing that it undermines them.

To aid this analysis, the chapter applies a framework conceived by Robert Cover, and elaborated by Katherine Young, of redemptive and rejectionist approaches. Feminists who adopt a redemptive frame recognize the limitations of international criminal law, but ultimately see the enterprise as redeemable—that is, they believe that with the right reforms it can be a tool for advancing women’s rights. In contrast, those who adopt a rejectionist frame, believe the premises that undergird international criminal law are so fundamentally anti-woman, that the best course is to reject it wholesale and find another tool for advancing women’s rights. The goal of this chapter is to put these schools of thought in conversation and suggest ways that feminists can work together to support their core shared goal: the advancement of women’s equality.

Hannah Wilson on "The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice"

Hannah Wilson published The Gendered Face of Climate Change: Exploring the Impact of Climate Change on Gender-Based Violence and the Role of State and Non-State Actors in Effecting Climate Justice in Volume 38 of the American University International Law Review. Here is the abstract: 

Climate change affects men and women differently. While some individual women may be less vulnerable to climate change than some men, the global perpetuation of discrimination, inequality, patriarchal structures, and systematic barriers contribute to an overall higher risk of women experiencing harmful effects of climate change. International human rights law prohibits discrimination on the basis of gender. However, in practice, systematic discrimination, harmful stereotypes, and social, economic and political barriers related to gender can lead to varied climate change impacts with respect to health, food security, livelihoods and human mobility, and more, which may significantly limit women’s and girls’ adaptive ability in the face of climate change. Such barriers include limited or inequitable access to financial assets and services, education, land, resources and decision-making processes, among many others. This reality is even starker for women and girls who face multiple and intersecting forms of discrimination; particularly those of lower socio-economic status, rural women and girls, and older women. As such, climate change perpetuates gender inequality. In turn, harmful gender stereotypes and entrenched forms of structural discrimination often significantly hinder women’s ability to meaningfully participate in climate action. Addressing climate change, including its gendered impacts, is therefore essential to the promotion and protection of the rights of women and girls.

The Gendered Violence of Asylum Reporting Requirements

Amelia Steadman McGowan, The Gendered Violence of Asylum Reporting Requirements, Columbia Human Rgts L Review (forthcoming)  

In the past two decades, some U.S. courts have created and imposed hardline, or “per se,” reporting requirements that bar protection to asylum applicants who did not first report persecution from non-state actors to the authorities before fleeing. These requirements provide no exceptions, even in the face of undisputed evidence that reporting would have been futile, dangerous, or even impossible. While prior legal scholarship has addressed the dangers of reporting requirements generally, this Article explores the unique burdens that these requirements place on applicants with gender-based claims.

This Article applies feminist theory and an interdisciplinary approach to explore the reasons why reporting is often futile, dangerous, or impossible for women and girls fleeing gender-based violence in Guatemala, Honduras, and El Salvador—three of the top countries of origin for applicants seeking protection in the United States. This Article contends that the same misogyny that fuels gender-based violence also infuses the very government structures charged with providing protection from that violence. It argues that when U.S. courts minimize or ignore an applicant’s reasons for not reporting gender-based violence, they condone and perpetuate the same violence that the applicant fled. By using both English- and Spanish-language sources and centering the voices and experiences of Latin American scholars and advocates from and in the focus countries, this Article also challenges the hegemony of U.S. government reports in establishing country conditions in U.S. asylum proceedings. For both reasons, this Article will provide an important contribution to refugees, academics, practitioners, and policymakers working to challenge the application of reporting requirements and to fortify gender-based refugee protections.

 

Abortion in China's Courts

A new article on abortion in China has been posted on SSRN, titled Contesting and Controlling Abortion in China's Courts. The article is authored by Molly Bodurtha, Benjamin Liebman, Li Chenqian, and Xiaohan Wu. The abstract previews:

 

The decision of the United States Supreme Court in Dobbs v. Jackson Women’s Health Organization has brought renewed global attention to how legal systems protect and restrict women’s reproductive autonomy. Central themes have included how the rollback of reproductive rights in the United States coincides with the Court’s embrace of a broader “jurisprudence of masculinity” and the relationship between abortion restrictions and authoritarianism, as multiple countries have enacted restrictive measures while undergoing democratic backsliding. Comparative inquiry is central to the abortion debate: Dobbs’ majority opinion, Chief Justice Roberts’ concurring opinion, and the dissent all discussed abortion regulations in other countries, with the Chief Justice’s concurrence clearly associating elective abortion with authoritarian governance in China and North Korea.

Despite these comparative references, the scholarly conversation on abortion, democracy, and how courts reflect and entrench gender disparities entirely omits China, the largest authoritarian state and a country with a high incidence of abortion. This is largely unsurprising: the central challenge facing Chinese women has not been abortion access but state-mandated birth control and abortion. Almost no prior scholarship examines how Chinese courts adjudicate disputes over abortion. This lack of attention reflects the common understanding that courts play no role in regulating reproduction and that abortion remains unproblematic in China.

Yet Chinese courts do confront and decide claims involving abortion. Drawing on a dataset of more than 30,000 civil cases discussing abortion, this article examines claims by men that their wives obtained abortions without the man’s “authorization.” Chinese courts rarely award damages explicitly on this basis. But men’s claims to have legal rights to control women’s reproductive choices are common, despite having no legal basis in Chinese law. The persistence of such claims suggests that women’s access to abortion care is more regulated in China than academic and popular accounts convey.

As China shifts toward encouraging rather than restricting births, traditional views of gender roles and the family increasingly align with the Party-state’s new pro-natalist policies. Courts may be an important venue for adjudicating reproductive rights and for enforcing such policies. China also presents an important example of how abortion and gender are contested in a legal system in which constitutional rights play little role and the legal status of abortion appears to be settled. China demonstrates that resolving the legal status of abortion does not eliminate legal conflict, but rather opens up new areas of legal contestation regarding reproductive rights. Recognizing how and when abortion is litigated in China suggests the need for scholars to place more attention on the role of private law litigation in contesting and restricting reproduction across legal systems. Men’s claims to control women’s reproductive choices in China also highlight the ways in which rights advocacy can serve regressive as well as progressive goals in democratic and authoritarian systems, and also that regime type may not dictate how legal systems address legal conflict over abortion.

Forthcoming Book on "The Feminist Legislation Project"

A new book is available for pre-orders now, The Feminist Legislation Project: Rewriting Laws for Gender-Based Justice. The book is edited by Becky Batagol, Kate Seear, Heli Askola, and Jamie Walvisch. It will be released in July 2024. The legislation is Australian-based with global applicability. Here is a summary: 

In this book, leading law academics along with lawyers, activists and others demonstrate what legislation could look like if its concern was to create justice for women.

Each chapter contains a short piece of legislation - proposed in order to address a contemporary legal problem from a feminist perspective. These range across criminal law (sexual offences, Indigenous women's experiences of criminal law, laws in relation to forced marriage, modern slavery, childcare and sentencing), civil law (aged care and housing rights, regulating the gig economy; surrogacy, gender equity in the construction industry) and constitutional law (human rights legislation, reimagining parliaments where laws are made for the benefit of women). The proposed laws are, moreover, drafted with feedback from a senior parliamentary draftsperson (providing guidance to contributors in a personal capacity), to ensure conformity with legislative rigour, as well as accompanied by an explanation of their reasons and their aims. Although the legislation is Australian-based, the issues raised by each are recognisably global, and are reflected in the legislation of most other nations.

This first feminist legislation project will appeal to scholars of feminist legal studies, gender and the law, gender studies and others studying or working in relevant legal areas.

Exploring the Tension Between Culture or Religious Practice and Gender Equality

Rangita de Silva De Alwis, Customs, Culture, Courts, and Constitutions: Negotiating the Balance on Gender Equality 

The tension between culture or religious practice and gender equality is a globally pervasive challenge in human rights practice. The human rights of women and the right to culture are sometimes in opposition while at the same time, the binary distinction between women’s human rights and the right to culture are also contested. In this paper, I examine how constitutions and courts have negotiated the balance through the interpretation of women’s rights.

The goal of this paper is not to examine the exegesis of religious texts or the hermeneutics of canonical arguments which are subjects of plural interpretation, or the burgeoning social movements that are active in claiming a dynamic interpretation of religion and cultural practice. Rather it is to analyze how constitutions and national courts frame the human rights of women in light of culture, and customary traditions. The paper maps the religious and free speech clauses of each national constitution and a compendium of case law from national courts in relation to the judicial interpretation of culture, customary laws, and religion pertaining to questions on women’s rights and gender equality. Given the complex nature of the debate on culture and women’s rights, an analysis that examines the textual authority of constitutions and the jurisprudence in national case law provides insights in situations when rights may compete and gender equality hangs in the balance.

A Feminist Approach to Competition Law and Policy

Kati Cseres, Feminist Competition Law, Cambridge Handbook on the Theoretical Foundations of Antitrust and Competition Law (Cambridge University Press, forthcoming 2024)

This paper takes up the challenge to show what a feminist approach to competition law and policy is, and what its contribution can be to the scholarship of competition law.

Despite increasing attention from academics and policy makers concerning the intersection of gender equality and competition law, most debates and discussions add gender to the analytical framework, economic calculation or survey, but fail to investigate the gender divisions that deeply bifurcate the structure of modern society, including legal rules, formal and informal institutions and enforcement practices. The implications of gendered lives, experiences and social realities on people’s preferences, choices and decisions in markets remain outside of such discussions. Therefore, feminist methodology and feminist social science research on gendered social realities remains a blind spot in current debates and discussions.

Remarkably, a similar blind spot exists in the diverse strands of feminist social science research, notably feminist legal and economic scholarship that has already been applied to various legal fields, but have engaged less thoroughly with the legal frameworks of market processes. Therefore, competition law has been a blind spot in these investigations so far.

By focusing on the central role of gender and women’s experiences, feminists take a contextualized lens and draw attention to the complexity of the economy, economic activities and the embeddedness of markets in broader social, economic and political contexts. Their analysis is multidimensional and pluralist, with a strong focus on human diversity and intersectionality. Feminist approaches go beyond merely adding gender to the analysis and investigate the deeper layers of legal rules, economic models and enforcement practices that entrench gendered power structures, dynamics, institutional arrangements and produce and reproduce various forms of inequalities.

From the richness of feminist methodologies, I draw on feminist legal theory, feminist (institutional) economics and feminist political economy to demonstrate how feminist approaches probe the alleged ‘neutrality’ and objectivity of competition law and to unpack the gendered nature (and impact) of its underlying legal rules, concepts and enforcement practices. I explore various assumptions embedded in existing competition rules and concepts, show which gender-based consequences the application of these rules and concepts may have and how policy makers and enforcers could implement gender into the substantive analysis of specific cases as well as into the procedures and institutional arrangements in the enforcement of competition law.

I argue that feminists’ analytical lens is, in fact, intimately related to the analytical lens of competition law. The focus of their analysis concern power structures and dynamics, investigate how various social and economic actors are impacted through these power inequalities and strive to control excessive power and change existing social, economic and political structures. However, the site and scope of their analysis differs. Competition law is concerned with market processes, structures and activities, while feminists repeatedly and forcefully called attention to those activities, processes and arrangements that lie outside of the market and the economy.

Kenya Court Affirmed the Right to Respectful Maternal Care

The Center for Reproductive Rights reports on a victory in Kenya's Court of Appeals. The facts of the case are excerpted from the opinion here: 

a. She was admitted to the hospital – and the hospital was overstretched to the extent that she had to share a bed with another patient;

b. She had to purchase her own drugs and cotton wool despite the government policy and Presidential directive that maternity services were free of charge;

c. She gave birth on the floor, in the corridor of the hospital, and without assistance;

d. She underwent physical and verbal abuse at the hands of the two nurses who attended to her when she fell unconscious on the floor;

e. She was forced to carry her un-expelled placenta back to the delivery room in further act of cruelty and humiliation;

f. She was not informed of the process she could use to file any grievance she had. 

The court held: 

28.The inevitable conclusion is that, upon an independent review of the evidence presented to the trial court, Josephine sufficiently proved her factual claims. The question that follows this conclusion is whether the facts, as proved, demonstrated constitutional violations to entitle her to the declarations the court made in her favour and against the appellants.

 

29.It is not, at all, contested that under our Constitution, every woman is entitled to respectful maternal care during childbirth as part of their social and economic rights enshrined in Article 43 of the Constitution. That aspect of the right to health is not subject to progressive realization. It is part of the minimum core of the right that must be realizable immediately and not progressively. The minimum core of a woman’s right to respectful maternal care during child birth must, as the trial court expounded, include

a. The right to be free from physical violence and verbal abuse during labour and childbirth;

b. The right to be free from discrimination during labour and childbirth;

c. The right to a dignified and respectful care – including being granted acceptable levels of privacy and confidentiality during labour and childbirth.