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Women and the Law: fighting gender bias for more than 30 years

Women and the Law

Professor Diamond Ashiagbor and Steven Whittle introduce the republished Women and the Law, the first book in the UK to examine how the law has perceived and responded to women.

Women and the Law, one of the first modern books of its kind, was originally published in 1984. Written by Susan Atkins and Brenda Hoggett, this key and influential text provide pioneering legal scholarship on women’s treatment under law.

Contemporary readers can appreciate how inspirational it was in 1984 and how relevant it still is today. It gives them a greater understanding of how the law developed; an appreciation of the progress since 1984; and of the ongoing failings. For instance, although marital rape is now a crime, high rates of acquittal and hostile treatment of complainants in rape cases continue.

Reading the book today also highlights the extent to which the state has made improvements via internal legal reform and political activism, social changes such as greater recognition of sexual identity, as and the positive impact of initiatives from European and international law.

This, in turn, inspires reflection on likely future developments such as to what extent the law is likely to recognise and respond to persisting inequalities and current concerns, including: gender pay gap, endemic sexual harassment, and the potential to move beyond formal towards substantive or even transformative equality.

Since 1984 the authors have achieved distinguished careers in law and public service. This 2018 Open Access edition provides a timely opportunity to revisit their ground breaking analysis and reflect on how much has changed, and how much has stayed the same.

Dr Susan Atkins CB graduated from Birmingham University with an LLB in 1973, a Master’s degree in Criminology from the University of California, Berkeley in 1974 and trained as a solicitor in local government. She was a law academic for 12 years, specialising in anti-discrimination law, and has also been a visiting professor at Southampton University.

She joined the civil service in 1989, where her posts included deputy chief executive of the Equal Opportunities Commission, departmental equal opportunities officer for the Home Office and director of the Women and Equality Unit in the Cabinet Office.  In 2003 Dr Atkins was appointed the first chief executive of the Independent Police Complaints Commission. She was the first independent Service Complaints Commissioner for the Armed Forces from 2007-2015 and holds a number of advisory positions.

Brenda Hoggett, now Rt Hon the Baroness Brenda Hale of Richmond,  DBE became a High Court Judge in 1994, having taught law at the University of Manchester for 18 years and promoted reform of the law at the Law Commission for over nine.  She was elected the first female head of the Supreme Court in 2017.  Lady Hale is also president of the United Kingdom Association of Women Judges and a past president of the International Association of Women Judges. She was Treasurer of Gray’s Inn in 2017 and is Master of the Company of Fellmongers of Richmond, North Yorkshire.

‘Only when women are aware of the extent of the discrimination against them, of how it operates and how to use the law to their own ends will further progress be made.’

This is not a legal textbook. Many admirable accounts of the legal rules governing most of the subject matter covered in its pages are available, but they have obvious limitations. In order to give a complete and accurate statement of the law, it is necessary to adopt the same habits of thought, the same definition of the issues, and the same approach to solving them as those who produced the rules adopted in the first place, or who might be expected to apply them.

Our purpose is quite different. We seek to understand how the law has perceived women and responded to their lives. Our object is not to give a biased account of the law but to uncover the extent to which the law is biased towards a particular view of life. It is still evident today that male rather than female eyes have shaped that perception.

We do not suggest that this is the result of any conscious male conspiracy — far from it. Any conspiracy theory would have to confront the problem posed by the real and important advances made in women’s legal status over the past 150 years, though men still predominate in centres of power and influence. If there has been a conspiracy, it has been singularly ineffective in recent times.

We do not have to believe that the existing gender order is inevitable in order to recognise that it exists. The law can obviously be part of that process of social construction. It can liberate women from their separate sphere. It can abandon all the rules which presuppose that one sex will enter one sphere while the other will enter another. It can even seek to break down the divisions which exist between those separate domains.

We still find the idea in several areas of law that women are allowed less responsibility than men. For example, they are not permitted to know better than others whether they should seek the law’s redress against an aggressor within the home. They have at last gained parity with men in raising their marital children, yet at the same time the autonomy of parents has been deprived of most of its meaning, and the state (through government and judiciary) has taken over from the family as arbiter of what is best for a child. Women have also gained the right to complain of some of the more glaring inequalities they face in the market place, but ways have been found of deflecting many of those grievances elsewhere. A persuasive case can be made that the rights which the modern law has extended to women are not rights at all.

We find that the removal of discrimination is always perceived in male terms. Every social development in the lives of women has tended to force into the open the deficiencies of the law in responding to those developments. But the deficiencies have almost always been those perceived by men from the point of view of a male-ordered world.

Women’s problems have become defined as such because men have realised that if the law treated them in the same way other males would consider it unjust. Thus, laws which seek to force women and men into separate spheres are now increasingly thought to be wrong, as are laws which put the stability of the home and family above the ordinary legal rights of the people within it.

But there has been little enthusiasm for laws which seek to adjust the relationship between the separate domains, to redefine what each entails. If anything, the attempt to redress the balance between breadwinner and homemaker has been under attack in recent years. Sometimes the attack has been launched in the name of feminism itself. Yet this is only another exercise in seeking to make the experience of women conform to that of men.

Only when women are aware of the extent of the discrimination against them, of how it operates, and of how to use the law and to influence law reform to their own ends, will further progress be made.

Adapted from Introduction to Women and the Law, republished by SAS Publications and the Institute for Advanced Legal Studies (IALS) at the School of Advanced study, August 2018.

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