To understand women's rights we must look at gendered laws

Following the global march for women's rights on Saturday, we must look more closely at the subtle but profound ways in which inequality is perpetuated by the law.

Nicola Lacey
24 January 2017

Thousands of people gathered at Trafalgar Square for a rally after marching through central London, to promote women's and human rights a day after the inauguration of US President Donald Trump. Photo: Press Association/Isabel Infantes. All rights reserved.

The LSE’s Gender, Inequality and Power Commission has been conducting inquiries into the multidimensional character of inequality and power imbalances between women and men. Their work takes place almost a century after the full admission of women to the legal profession; almost 90 years after the extension of the right to vote to all women; nearly half a century after the implementation of equal pay and anti-discrimination legislation; and at a time of increasing female participation in the labour market. Yet we found that inequalities between women and men, largely to the disadvantage of women, persist.

In our report we explored the links between the different forms of gender inequality and operations of gender-based power across the economy, the political sphere, the legal system and the world of media and communications. For the social forces which shape gender inequalities do not operate independently within different social sectors: rather, vectors of power which affect the position of women and men in one sector standardly affect their opportunities, status or position, or their work-life balance – or the worth of their rights and entitlements – in others. The economic inequalities which persist in the labour market and the distribution of income, for example, curtail opportunities for women in the political sphere and within the law; the persisting inequalities and biases in the representation of women in the media and culture affect the opportunities of and attitudes to women in other spheres; the inadequate design or implementation of legal provisions shapes the status and opportunities of women in economic life. Gender-based violence might be thought to be a concern primarily of the law, yet gender inequality in the political sphere dilutes the will to tackle it; media representations enact and normalise it and the government’s austerity policies perpetuate it. In other words, power relations in the media, the economy and the political system shape the relative worth of rights formally established by the legal system.

We found that ostensibly neutral legal rules and arrangements are often framed implicitly in terms of assumptions about the life courses of men, producing a situation in which law is, in effect, male. 

We found that ostensibly neutral legal rules and arrangements are often framed implicitly in terms of assumptions about the life courses of men, producing a situation in which law is, in effect, male. With formal barriers to the profession a thing of the past, and formal gender equality securely entrenched in legal norms, one might have expected that the law had unambiguously become a tool for the advancement of gender equality, and the legal system a place of genuinely equal opportunities. Yet there remain questions about how far the law truly lives up to its own aspiration to achieve gender impartiality and fairness in the articulation of its provisions.

To take one example in relatively recent English law: before the reforms introduced by the Sexual Offences Act 2003, the law of rape provided, in effect, that a man who had sex with a woman without her consent, believing that she was consenting, had to be acquitted even if he had no reasonable grounds for that belief. This placed the man’s point of view above all else, including the rights of the victim. Such examples remain common in some jurisdictions. But even where the law appears to be neutral, legal rules can disadvantage women, and gendered assumptions shape legal interpretation. A good example is the operation of criminal law in the context of domestic violence. The requirement that a defensive reaction, to qualify as a legal defence, must follow immediately upon a threat of violence, disadvantages the physically less powerful. 

Law subtly operates on the assumption that a ‘normal’ legal subject has characteristics associated with white, middle class heterosexual men.

The law disqualifies gendered, trans-gendered and sexed identities by defining, albeit implicitly, the qualifications for claiming and exercising legal rights. In many contexts, law subtly operates on the assumption that a ‘normal’ legal subject has characteristics associated with white, middle class heterosexual men: someone who works full time, does not take career breaks, does not sustain caring relationships which affect his capacity for earning and his (paid) working hours, and initiates rather than ‘consents to’ sex.  The marginalising power of these unstated norms, moreover, is magnified where differences of gender intersect with those of ethnicity, socio-economic advantage, religion and sexuality. In this context, formally equal rights may turn out to be of significantly less worth to certain groups. For example, the basic right to freedom of expression is arguably reduced for women by the pervasiveness of forms of pornographic and abusive expression which subtly change or disqualify the meaning of women’s speech.

To tackle these problems we recommend the recognition of diversity as a relevant criterion in the selection of judges; the full implementation and more effective use of the Equality Act; the reversal of legal aid cuts so as to restore access to justice in a range of legal areas of key importance to women, as well as reconsideration of tribunal fees which now make litigaton unaffordable for the vast majority; the incorporation of the Convention on the Elimination of All Forms of Discrimination against Women and ratification of the Istanbul Convention on Violence against Women; and reforms relating to the scale and quality of women’s imprisonment.

Earlier this month we published an updated version of the report which found a number of developments. The Women and Equalities Select Committee has been active in a number of key areas, notably in drawing attention to the continuing discrimination against pregnant women, and has advocated enhanced legal protection for those claiming maternity leave. But the continued pressure for legal reform has been counterbalanced by reverses. To take one example, the reliance on sexual history evidence to overturn a rape conviction in the case of footballer Ched Evans has given rise to fears of a new willingness consider an expansive reading of what had been thought to be very narrowly drawn exceptions to the general exclusion of sexual history evidence. This type of evidence is generally excluded from sexual offence cases because it is deemed both irrelevant and disproportionately prejudicial to the perceived credibility of witness testimony. The erosion of this hard won protection is just one among many concerns about the adequacy of legal and social policy in relation to violence against women.

The rise of populist movements in many of the world’s democracies – movements formed in the context of distrust of political elites, economic hardship and a perception of injustice – has given voice to groups who have come to regard the case for equality in areas such as gender, sexual orientation, race, ethnicity, and disability as a preoccupation with ‘political correctness.’ But our findings show that prejudice against women goes far beyond language and pervades even our most respected institutions in ways that are both subtle and profound.

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