Gender Legal Theories

Question 1

general opening quote - Simone De Beavoir + history

Answer 1

‘one is not born but rather becomes a woman’ - subjects of law have been historically male orientated and thus gendered in this way (i.e tort law = “reasonable person” generally referred to as white able bodied male)

This idea of gendered legal conduct can be seen in the use of sexual history evidence concerning rape; undermines credibility of victim/witnesses by using past evidence of similar (uniquely) sexual events to justify D’s assumption as “reasonable”.

Question 2

General intro on what gender theories have aimed to do + example of where they have positively impacted an area (chapkis quote)

Answer 2

expanding gender theories have attempted to redefine acts previously condoned & manipulated by patriarchal structures in a way that encompasses the universality, equality and social justice that our current legal framework fails to do.

e.g. Chapkis: describes prostitution as “a potent symbolic challenge to the confining notions of womanhood and conventional sexuality” = elevates prostitution from the “sub-human” class it was assigned, as a means of justifying acts of sexual violence against women and provides the recognition of its validity as a legitimate form of work in recently that should be regulated. (e.g. beginnings of such leniency can be seen in legalised red light district of Holbeck)

Question 3

Liberal Feminism (MacKinnon quote + background of lib fem)

Answer 3

women excluded from public discourse/institutions largely because men set standards of entry and presumed domesticated life for women.

BUT, lib fem provided strong political platform/inspirational mentality = “anything men can do women can do” - MacKinnon

Question 4

examples of historical movement in Liberal Feminism + example of other topics it has impacted

Answer 4

suffragettes movement’ similarities of men and women to secure the vote, higher education and inclusion in workplace

e.g. can be seen in legal profession with 42% trainees entering profession and over 50% studying law.

BUT, only 24% partners = glass ceiling allowed entry into male sphere but not defining that sphere.

Question 5

problem with liberal feminism: extending franchise

Answer 5

extending franchise to women has not led to equal political representation of them:

25. 6% in European parliament
26. 6% in house of commons

not clear increase of women in political sphere has created more female friendly policies/laws = idea of playing male.

Question 6

problem with liberal feminism: individualistic

Answer 6

obscures general trend in society (i.e. women likely to be subject to sexual violence and obscures clearly social and cultural pressures present) -

e.g. highest morbidity rate for women 19-44 is domestic violence and further affected by social/cultural pressures across women = BME women victims less likely to seek legal help; 9 out of 10 survivors preferring support from specialist refugee services that understand their needs)

Question 7

problem with liberal feminism: expectations of woman hood

Answer 7

expectation of women to leave work to care for child and being given more gov. money/leave than men encourage this

BUT, equality and human rights commission outlines strategy to improve pay imbalances between men and women = all jobs to be advertised with flexible working hours and giving fathers additional paternity leave

Question 8

problems with liberal feminism: negative freedom + gidden quote

Answer 8

idea of laisse faire whereby lib fems see freedom as something that can be established amongst people themselves, but this has historically led to public/private divide and consequences include high rates of Domestic violence (1 in 4)

“the home is in fact the most dangerous place in society” - Gidden

Question 9

Liberal Feminism problem: same v difference debate

Answer 9

lib fems see men and women as same and so treats them the same

but just formally opening laws up to women and throwing them into the mix does not necessarily lead to substantive equality (i.e. equal pay BME women; 13% solicitors, 16% barristers, 24% admission to law)

Question 10

Problems with Liberal Feminism: formal equality v Substantive equality (prostitution example)

Answer 10

lib fems see prostitution as redefining concept of womanhood and so valuable asset in restructuring societal attitudes between men and women.

BUT, regulating such work and decriminalising it may only provide a formal equality because of present structural inequalities between men and women
(survey: 59% think prostitution is a reasonable choice to have - but fails to protect sex workers from all serious harms as a result of very inevitability of prostitution (80% think it exploits them))

inevitability includes economic restraints influencing women’s entry into jobs, including reduced labour market options and need for flexible working hours to accommodate women’s working practices are alike those shaping entry of many women into sex work.

Question 11

problem with liberal feminism quote (young)

Answer 11

assimilating women into an unchanged male sphere is like “coming into a game after the rules have been set, already begun and having to prove oneself according to these rules and standards”

Question 12

Cultural/relational feminism: what is it? (gilligan)

Answer 12

focus on difference between men and women - Carol Gilligan found young boys and girls approach dilemmas requiring moral reasoning in different ways:

Boys = ethics of justice

Girls = ethics of care

female moral reasoning different but not deficiant

Question 13

positive of C/R feminism - Rhodes

Answer 13

research of Gilligan recognises values associated with women and demands “these values be valued”

Question 14

positive of C/R feminism - its objective

Answer 14

objective = inclusion; celebrate women’s difference/experiences and bring reform accordingly in context of work, family and politics

Question 15

problem with C/R feminism - essentialism/all women same (plus positive in response)

Answer 15

empirical merits that all women are different may not reflect all women - study from a small unrepresentative sample

BUT, still good grounds to suspect that women will, on the whole, experience and reason differently to men and if patriarchal society been grounded on a way not all men possibly think then surely bringing in consequences of how women reason will help equalize society/law

Question 16

positive of C/R feminism = where essentialism is good (prostitution - Gruz quote)

Answer 16

useful in drafting regulations on prostitution - “formal inclusion is no guarantee of protection” - Gruz

embrace of ethics of care could allow for women’s experiences to influence regulation/protection of sex workers and how regulation is implemented.

Question 17

problem with C/R feminism (ethic of care = internalised gender stereotypes)

Answer 17

these difference may be a consequence of internalised gender stereotype that have contributed to women’s disadvantage. - so relational approach risks affirming that which has distinguished women from men and used to justify subordination into private sphere (and see legal profession job sectors)

Question 18

Dominance/Radical feminism MacKinnon quote + overview of theory

Answer 18

“difference is the velvet glove on the iron fist of domination” - domination established first, gender differences subsequently constructed as significant to justify/maintain patriarchal power.

question of whether female differences are affirmed/denied is irrelevant = those differences are defined by power - inequality no longer blips in an otherwise legitimate system but part of pervasive network that infiltrates every aspect of our gendered existence

Question 19

positive of D/R feminism (smart quote)

Answer 19

approach offers a “productive counterpart which generates further female discourses”

Question 20

positive of D/R feminism - exposing reality of failure in legal reforms based on lib fem/C/R ideals + example + quote (O’Donovan)

Answer 20

commended for exposing reality that reforms designed to secure gender equality will inevitably fail if they neglect question of how female identity is defined and constructed

e.g. marriage law has failed to address Corbett v Corbett test for sexuality as fixed at birth and although GRA introduced in 2004, law continues to obsess over categorising people into being male or female for purposes of maintaining current patriarchal system.

should move more to scale of “maleness and femaleness” as O’Donovan points out.

Question 21

problems with D/R feminism - victimisation of women

Answer 21

claims women are victimised by men is empirically questionable; evidence rarely provided and approach ignores experiences of many women who derive positive value from interaction with men and do not regard intimate hetero relations as premised on subordination-domination dynamic.

Question 22

problems with D/R feminism - ignores power disparities between women + quote from Vanwesenbeck

Answer 22

disparities between women often as a result of intersection of other axes of stratification (e.g. prostitution “mega brothels” in Germany pricing prostitutes on ethnicity and age)

Vanwesenbeck stressed importance of a polymorphus paradigm to highlight how victimisation, exploitation, agency, job satisfaction, self-esteem and other dimensons should be treated as variables that differ between different types of sex work, geographical location, culture and other structural conditions. = domination does not equal same thing to all women

Question 23

Gay and lesbian theories overview

Answer 23

decriminalisation = wolfden report; not proper for law to concern itself with what person does in private unless contrary to public good.

• Criminal Justice Act 1967 decriminalised homosexuality to 21
• sexual offences (amendment) act 2000 equalized to 16
• BUT, S.28 of local gov act 1988 still provided that local authority shall not promote homosexuality or publish material with intention to do so - eventually removed by Local Gov. Act 2005.

Question 24

gay and lesbian theories example of where homophobia was still an issue

Answer 24

fear of male homosexuality as cause of aids/hiv is still an issue today = 12 month deferral period for gay men donating blood, but recently announced gay men & sex workers can now give blood as long as 3 months passed.

Question 25

Gay and Lesbian Liberal rights overview of cases challenging law (X v UK & Sutherland v UK)

Answer 25

X v UK; challenged CJA 1967 - consensus violated Art 14 &8 of ECHR = failed, protection of rights of others legitimate aim - court cited german studies which describe “a specific social danger in case of masculine homosexuality & male homos tendency to proselytize adolescents”

Sutherland v UK; challnege CJA & POA 1994 consent to 18 failed but 2000 age of consent reduced to 16

Question 26

positive of Gay and lesbian liberal rights (movement of equal value = discussion)

Answer 26

movement based on equal value, respect, dignity of human beings and such arguments fit within dominant legal framework = more likely to be discussed/challenged/acted upon so success securing social change.

Question 27

example of problem with Gay and Lesbian liberal rights (marriage - faithfulness/religious services)

Answer 27

may have more success bringing social change BUT, Marriage (same-sex couples act) 2013, although symbolic significant for homosexuals it may not remove the negative connotations of homosexual sex as seedy and unnatural =

s.12(A) OF mca 1973 removed from same-sex marriage = no adultery; ‘what is marriage without faithfulness?’ MP Nadine

no obligation of marriage religious services: S.202 Equality act 2010 quadruple lock; to protect religious interests in maintaining marriage as between man and woman if they so wish. 1) gov. body of religion opt in. 2) individual minister is willing 3) ceremony approved for same-sex marriage 4) premises registered for same-sex marriage.

Question 28

problems with gay & lesbian liberal rights (same as hetero relationships)

Answer 28

it assumes gay/lesbian relationships are same as hetero ones when, in reality, there are many varied ways in which individuals choose to live their lives/express sexuality =

non-consumation bolstering idea that hetero sex is the sex act and failure of civil partnerships to be extend to heteros as in Steinfeld v SoS for education

Question 29

problems with gay & lesbian liberal rights (making one like the other)

Answer 29

need a equal platform for both so they can stand side by side of eachother as opposed to making one like the other

Question 30

Gay liberation (radical theory) background

Answer 30

movement part of stonewall riots 1969 & followed motto “gay is good” in attempt to challenge idea of homosexuality should be same as hetero - rejecting heteronormativity.

did not hate heterosexual relationships; believed no one should fit this model whatever their sexual orientation

Question 31

positive of gay liberation theory (challenges to social structures + weeks quote)

Answer 31

provides radical challenges to social structures, norms and institutions:

“for the gay community it had immensely stimulating effect in ways that are still being realised. GLT did not cause changes that have taken place but did suggest they may be possible” - Weeks

Question 32

problem with gay liberation theory (essentialism)

Answer 32

assumes common essence to all identities of being gay/lesbian but may be differences and experiences (LGBTQ issues hate crime grouping together when very different)

Question 33

problems with gay liberation theory (alienation)

Answer 33

difficult to get on board such a radical movement and so can sometimes alienate people who would want to be part of it.

Question 34

Queer theory and politics (Stychin quote)

Answer 34

“the queering of boundaries of socially constructed categories…is an important means of underscoring the social contingency of those apparently bounded categories’

Question 35

Queer theory and politics (response to other theories -emerged late 80s)

Answer 35

QT is a response to limits on gay and lesbian liberal/radical theories and to essentialism critiques of these.

challenges identity politics and provides platform for certain people who will always fall outside of other political movements because they may not fully identify with them and so miss out on benefits of developing identity and lived experiences into norms of society

Question 36

problem with QT (rejecting gender categories)

Answer 36

subverting/transcending gender sexuality categories is an ineffective strategy got change (i.e. rejecting these categories won’t address sexual violence or gender pay gap) - but see Vera Baird on LGBTQ DV and hate crime

Question 37

problem with QT (still creates category)

Answer 37

question whether queer identity can exist without constituting a more fixed (if fluid) category which will still continue to create exclusions and boundaries

Question 38

positive of QT (embracing all who fall outside of categories) - Valdes quote

Answer 38

QT embraces anyone who identifies as queer whilst still emphasising need ‘to avoid replicating oppressive aspects of past & present and instead honour inclusiveness and egalitarianism’ - Valdes

(e.g. abortion concern of selective gender one if legalised could be altered by QT; providing an expressive and equal space for everyone will expose infinite possibilities of “the person” as opposed to focus on gender or physical ability.

Question 39

positive of QT (social model) + example

Answer 39

QTs focus on social model = treats sexuality as product of intersecting cultural and historical events; views sexuality as a widespread social condition and thus a matter of importance to all individuals whether they are sexual minority or majority.

e.g. prostitution as a means of bridging the gap of sexual minority and majority though limitless sexual expression - ‘prostitution if legalised could proved a sexual aware area’ = Sprinkle.

Question 40

positive of OT quote McIntosh

Answer 40

‘queer theory has no time for disputes over whether bisexuals are really gay or transsexuals are really women because the categories gay and women are artificial, as is the fixedness of the identities they presuppose’

e.g. could link with GRA 2004

Question 41

example of where QT could be useful (hate crime)

Answer 41

queer theory aspires to include people who do not conform to culturally tidy label so could help in hate crime sense; 1/4 feel need to alter their behaviour so they’re not perceived as gay to avoid being victim of crime - stonewall 2008

54% rise in transphobic hate crime in 2014 - home office

Question 42

problem with QT theory (oppressed groups + broad category))

Answer 42

criticised for robbing oppressed groups of the valuable symbols of identity that have given them hope for future change - without identity politics, groups may lack necessary cohesion to get anything done.

Queer is overly broad practice defined as opposition to straight norms and so anyone who subscribes to deviant sexual practices can be included = little in common with eachother

Question 43

positive example of QT theory (response to oppressed groups issue - Gellman quote

Answer 43

hate crime; stirring up hatred on sexually sch. 16 crim justice and immigration act 2008 + aggravated offences for transgender identity in legal aid, punishment and sentencing of offenders act 2012.

“having hate crime reinforces those group’s vulnerability; concerned with privileging some identity groups over others; hate crime isn’t eradicated through hate crime legislation its just repressed” - Gellman

Question 44

response to Gellman quote on hate crime (QT theory)

Answer 44

McHaughlin argues hate crime legislations are useful tools to address injustices in society; i.e. hope for oppressed groups

but forcing of victim-perpetrator narratives in certain groups

Question 45

Queet theory overall positive (potential benefits + success)

Answer 45

potential benefits & lessons of deconstructing identity politics dramatically outweighs concerns about symbolic value of identity or the risk of fighting for too many types of people through a single movement.

Success lies in its ability to build coalitions and find common ground with other minority theories, which is arguably possible by conscientiously deconstructing sex, gender and sexual orientation to offer new strategies to GLBTT and feminist theories - Hemp