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	Alternative Law Journal

A quarter century of feminism in law: Back to the future

Hard-earned reforms in areas of law that operate in a gendered manner are constantly under challenge.

Regina Graycar and Jenny Morgan

Regina Graycar is a full-time Commissioner at the New South Wales Law Reform Commission. Jenny Morgan teaches law at the University of Melbourne.

Setting the scene

Feminists in Australia generally began to engage with law, as did feminists in other countries, through involvement with criminal justice issues around violence against women. The 1980s saw a proliferation of government-sponsored inquiries and task forces into rape, domestic violence, child sexual assault etc. By the 1990s, law reform on these issues had occurred virtually across Australia.

In the 1990s, attention moved from the criminal justice system to the legal system more broadly. In 1993, there was unprecedented public debate in Australia about the ‘new’ phenomenon of ‘gender bias’ in the law, largely ‘discovered’ by the media through the (perhaps insufficiently valued) contribution of the now infamous South Australian Supreme Court judge, Justice Bollen. His comment that ‘a measure of rougher than usual handling’ may be used by a man to obtain his wife’s ‘consent’ to sex became notorious and was the impetus for much of the media debate.[1] Of course, many women had known for some time that the law was not entirely women-friendly but, in 1993, it became ‘official’.

As is now perhaps well known, a number of initiatives, moving beyond the rape context, followed the rougher than usual handling that the issue received in the media. In accordance with 1993 election promises, the then Federal Government established an Australian Law Reform Commission inquiry into ‘Equality before the Law’ with very wide terms of reference (and an almost impossible deadline).[2] The former Prime Minister, Paul Keating, also committed some funds to judicial education on gender issues which, while including issues of violence against women, also moved beyond these concerns.

Feminists engaged in law had begun to raise questions about gender in areas of law that had not previously been perceived as gendered. For example, the issue of ‘sexually transmitted debt’ has gained considerable attention;[3] gender has been found to permeate personal injury damages;[4] feminists have increasingly engaged with the ‘tax debate’,[5] while company law, superannuation and retirement income policies have all been subject to feminist scrutiny.[6] But this expansion of the agenda of issues receiving and requiring feminist scrutiny did not mean that the old issues had been ‘resolved’.

In the economic arena, feminist lawyers who have campaigned for years around pay equity watched with dismay as childcare funding was slashed, forcing many women to leave the paid workforce; and women’s wages declined as enterprise bargaining and individual contracts replaced centralised wage fixing. Affirmative action for women is under constant threat, and the federal government’s tax proposals penalise two-earner families and provide incentives for lower-paid women to remain outside the paid workforce.

And, after many years of activism around family law, it has finally been recognised that caring work is predominantly women’s work, and that women and children are impoverished by family breakdown. But in 1996, the law declared, somewhat confusingly, that parental responsibility was ‘gender neutral’ and children had a ‘right of contact’ with both their parents, at the same time as the legislation attempted to make violence a relevant factor in children’s decision making.[7]

It is still common to hear suggestions that the under-representation of women in the senior positions in the profession (for example, senior counsel, partners in law firms and the judiciary) is a function of history — ‘it’s only a matter of time’ — and that as more women graduate from law schools, this will change. The reality is that this is manifestly not the case: women have been well represented in law schools for some considerable time and while the number of ‘handmaidens’ in law, as Thornton has described them,[8] may have increased, the number of women who are partners in law firms has actually declined over the last ten years in NSW.[9] Inquiries such as Equality of Opportunity for Women at the Victorian Bar suggest that the climate for women barristers remains a chilly one.[10] It is still the exception, rather than a matter of routine, for judges to be women, as the recent prominence given to a NSW Court of Appeal full bench constituted solely by women indicates.[11] And to the extent women are appointed to the bench, not only are they still seen as oddities, but perhaps because they are extraordinary, they may also be the subject of challenges to their impartiality, that is, simply challenged on the basis that they are women.[12] Early in 1999, the Canadian Supreme Court in a 9-0 decision overturned a judgment of the Alberta Court of Appeal in a sexual assault case. Justice L’Heureux Dubé, one of two women on the court, issued a separate judgment, with which one other (male) judge expressly concurred.[13] She addressed some of the myths and stereotypes in the judgment of McClung J in the court below, who had said, inter alia, ‘the complainant did not present herself in a bonnet and crinolines’ and said of the perpetrator, his ‘advances to the complainant were far less criminal than hormonal’. The day after the judgment, Justice McClung wrote a letter to a newspaper attacking Justice L’Heureux Dubé directly, and what followed was a national debate over a period of weeks about whether ‘feminism had gone too far’, coupled with calls for her resignation.[14]

Consider sexual assault or rape law reform in Australia. All Australian jurisdictions have made substantive reforms to the law and to the provisions dealing with the evidence and procedures in rape trials. But while the law is significantly different now from what it was prior to the amendments, feminist concerns about the fairness of the process have not abated.[15] There is a suggestion that the law across Australia should be made uniform which could carry with it a reduction in the protections available in some jurisdictions.[16] New ways have been found to revive some of the rape myths and stereotypes that make successful prosecutions difficult. While the complainant’s sexual history may not be adduced during the course of a trial except in very limited circumstances, defence counsel have developed new strategies, including seeking access to sexual assault counsellor records.[17]

It is clear then, as Carol Smart pointed out as long ago as 1986, that hard-won gains in law reform are not simple conclusions to campaigns, but are instead part of a process of ‘the uneven development of law’.[18] We have chosen to illustrate this through a short case study on the right to abortion in Australia. We will use this to reflect on various strategies of law reform and the role they are likely to play in feminist engagements with law for the next 25 years.

Abortion: a case study

For many years, feminists have campaigned for women to have the right to control their own fertility and demanded access to safe affordable abortion services. While South Australia ‘reformed’ the law by enacting a statutory regime of abortion regulation in 1969, in NSW and Victoria criminal prohibitions on ‘unlawful’ abortion were interpreted by courts in ways that made it unlikely that they would be used in future against either women or doctors involved in abortion services.[19] Terminations of pregnancy are performed under the Health Insurance Act 1983 (Cth), and in the 1994–1995 year, some 77,000 terminations were funded by Medicare. However, in 1994 the legality of abortion was once again placed at risk, this time via a civil action for damages. This case raised the fragility of hard won gains, and it also provided a telling reminder of the fact that, unlike in North America, law reform efforts in Australia have been largely directed at the legislative, rather than the judicial arena.

The case that led to this controversy started as a basic medical negligence case. CES, concerned that she might be pregnant, visited a medical centre and after five separate visits, her pregnancy remained undiagnosed. By the time she discovered that she was in fact pregnant, it was too late for the pregnancy to be safely terminated. She sued for the loss of opportunity to terminate the pregnancy claiming that she would not have continued with it if she had been told in time that she was pregnant. The trial judge dismissed her claim, holding that the plaintiff was not entitled to damages since her case depended on a claim that she had lost an opportunity to do something he determined was illegal (namely, to have her pregnancy terminated) and therefore the law did not permit her to claim damages. The NSW Court of Appeal, by majority (Kirby A-CJ, Priestley JA; Meagher JA dissenting), reversed this decision, but the majority could not agree on the appropriate approach to the assessment of damages.[20] The defendants asked the High Court to reinstate Newman J’s decision. In addition to the issue of illegality, they also argued that as a matter of public policy, ‘the birth of a healthy child can never sound in damages’. The respondents to the appeal (CES and PA, the child’s father) were also intending to cross appeal, as the effective result of the Court of Appeal’s decision would have severely limited the damages available to them.

We argued prior to the High Court hearing the appeal that this case was basically a medical negligence case and that the judges who had focused their attention on the legality or otherwise of what was a purely hypothetical abortion, were going beyond what was necessary or relevant for them to decide the case.[21]

However, the approach we had taken did not anticipate the intervention of the Catholic Church. In a surprising decision, the Catholic Bishops Conference and the Catholic Health Care Providers’ Federation were granted leave by the High Court to intervene in the case.[22] The intervention application was itself contested: it was decided on a vote of 3:3 by the members of the High Court, the casting vote being that of the Chief Justice.[23] Once the Church was allowed to participate, the nature of the case was set to change dramatically into what the press described as the first major ‘abortion test case’. At that stage, women’s organisations had to try to respond without the benefit of any organised women’s litigation group and were unable to seek leave to intervene before the case adjourned.[24] The Abortion Providers’ Federation, however, was granted leave to intervene.[25] The Women’s Electoral Lobby (WEL) later announced its intention to seek leave to intervene.

In the event, the case settled before the application by WEL could be decided.[26] However, for our purposes, the more interesting question is what sort of arguments would feminists have mounted in arguing for women’s access to safe publicly funded abortion in this context.

In Canada, feminists have often intervened in constitutional litigation, and the Canadian Women’s Legal Education and Action Fund (LEAF), a women’s litigation and law reform organisation, has been involved in a number of analogous cases concerning reproductive rights.[27] They have argued that access to abortion raises an issue about equality for women. Safe, unimpeded and dignified access to lawful abortion services is a necessary component of sex equality in the context of reproduction. Just as pregnancy discrimination has been held to be a form of sex discrimination,[28] access to safe reproductive health services required by women is an issue of sex equality. It has variously been argued that:

Men as a group are not comparably disempowered by their reproductive capacities — no one forces them to impregnate women or to bear children — and they are not generally required by society to spend their lives caring for children to the comparative preclusion of other life pursuits.[29]

and that:

Laws cannot alter the reproductive capacities of men and women, but they can and do prescribe the social and legal consequences which attach to them.[30]

These sorts of assertions or claims seem to rest on fairly broad brush claims about ‘women’ and ‘men’. It is difficult in a litigation context to reflect a more nuanced understanding of the recent challenges to ‘white’ feminism by Aboriginal women and women of non-English speaking background. So would it be possible to include the experiences of a wide variety of women in a litigation context? Could you point out that women do not unequivocally control their access to contraception? (It is costly, particularly for poor women.) Could you emphasise that Aboriginal women have been subjected to forcible use of contraceptives such as depo provera?[31] How about women with disabilities who have been sterilised, often for eugenic purposes?[32] It is unclear to us whether there would have been an opportunity, even if WEL had been granted intervener status,[33] to make any of these arguments. The equality arguments in Canada have been developed in a context where the Canadian constitution contains a guarantee of sex equality and LEAF has been challenged to become more coalitionist in its politics and include issues of race, disability etc in its argumentation on behalf of ‘women’. In Australia, given the difficulty of getting the court to see a connection between reproduction and women’s equality, Australian feminists may be even more wary of muddying the waters by representing a more nuanced approach to women’s diverse equality claims.

It is unclear to us whether the next 25 years are likely to see more feminist engagement in litigation, especially as interveners. Will we have a constitutionally entrenched bill of rights? Will the granting of intervener status to the Catholic Church in CES lead to a broader range of voices being heard in that court? Specifically, will this (or any future) government fund a National Women’s Justice Program of the type recommended by the Australian Law Reform Commission in its 1994 report ‘Equality before the Law: Justice for Women’? Or are Australian feminists more likely to stay in the legislative arena where so much of the activist energy has to date been focused? That the legislative arena can, on occasion, provide a sympathetic environment for feminist arguments in the abortion area is illustrated by events in Western Australia in the past year.

Early in 1998 the West Australian DPP charged two doctors with performing an unlawful termination.[34] The termination had come to the attention of the authorities as the Maori woman concerned had asked to take the foetus home so she could bury it in accordance with her religious and cultural beliefs. She had kept it in her fridge and her child described this at ‘show and tell’ at his school.[35] The Western Australian Criminal Code, while it had some similarities to the Victorian and New South Wales legislation, was not the same and there was some doubt whether the Levine and Menhennit rulings applied in that jurisdiction. When the charges were laid, doctors in that State threatened to cease performing abortions, and newspapers reported that some women were attempting to abort themselves, with tragic results. The opportunity of the prosecution was seized upon by long time campaigner, the Hon Cheryl Davenport to introduce legislation which would have removed abortion from the Criminal Code altogether. After a lengthy debate, the original criminal offences were abolished but they were replaced with a new provision in the Health Act that provides, in effect, that an abortion is lawful if the woman concerned has given ‘informed consent’. While the informed consent provision requires two doctors to be involved (a doctor other than the one to perform the abortion must ensure her ‘informed consent’), there is no restriction on where abortions can be performed. Most importantly, the decision is expressed to be one for the woman rather than for a medical practitioner.[36]

As with involvement in the CES litigation, feminist activism on abortion in WA was also reactive: while Davenport had sought reform of the law for some time, it was the crisis generated by the apparent ‘banning’ of abortion that ultimately concluded with a new, more permissive, legal regime. There is real doubt whether this progressive legislation would be achieved in other jurisdictions in the future; that is, there is no reason to assume that because, in 1998, the Western Australian parliament passed progressive legislation, feminist activists should turn their attention to their own parliaments. Feminist activists in Western Australia had no choice and, as indicated by the CES litigation, feminist interventions in law both at the parliamentary level and in the courts, are often going to be at the dictates of others.[37] However, the legislative arena in Western Australia did provide at least some opportunity for abortion to be recognised as an equality issue for women[38] and while we occasionally envy our feminist colleagues in Canada able to intervene frequently in constitutional litigation, it may be that the legislative arena will continue to offer a more fertile ground for feminist legal interventions in Australia, despite the prevalence of conservative governments.

Back to the future?

What does the return of abortion to the front pages and the return of feminist activists to the front lines tell us about what to expect in the future? As we mentioned earlier, the range of issues in law that feminists have identified as operating in a gendered manner has expanded well beyond the first wave of concern about rape law, domestic violence, and women’s control over their fertility. But at the same time, hard-earned reforms are constantly under challenge. We have referred to the work of feminist legal activists in Canada where the equality guarantee under the Charter of Rights and Freedoms has provided a framework within which feminist arguments are made (and sometimes heard) in the Supreme Court of Canada. Yet in the first few months of this year, the Attorney-General of one province has recalled brochures for women survivors of domestic violence on the grounds that no comparable literature is available for male ‘victims’ and we have already discussed the attacks on feminism in the Supreme Court of Canada.

In Australia, as in Canada, the struggle in the context of sexual assault has moved to the issue of counsellors’ records. Women’s right to control their fertility, including their right to safe, affordable abortion, once considered relatively settled, has re-emerged as an issue that can be used by those who oppose women’s equality to try to limit their autonomy.

While no-one can predict with any certainty what the next quarter century will bring women involved in the law and legal issues, it is sobering to reflect how much has changed but how much has remained the same in the past 25 years. Twenty-five years ago, a course in feminist legal theory or law and gender at an Australian university law school would have been unthinkable; now such courses are relatively common. Yet many areas of legal doctrine are still taught, practised and pronounced upon by courts as if women remain ‘fringe dwellers of the jurisprudential community’,[39] or as if law schools and the courts were still the sole domain of white anglo heterosexual men (though ones who occasionally are sufficiently generous to ‘allow in’ a few token women).

What will an article like this one say in 25 years from now? Will 50% of superior court judges in 2024 be women? (Well, there is no law against fantasising.) The history of the past quarter century suggests that the same issues will continue to resurface; that 25 years from now we will still campaign around rape and sexual assault, and reproductive freedom. As well, our 25-year-old colleagues will identify their own priorities and agendas and hopefully these will take a more prominent place on the legal stage.

References

[1] See now Question of Law Reserved on Acquittal Pursuant to Section 351(1A) Criminal Law Consolidation Act (No 1 of 1993) (1993) 59 SASR 214.
[2] See Australian Law Reform Commission (ALRC), Equality Before the Law: Justice for Women, Report No 69, Part I, Sydney, 1994 and ALRC, Equality Before the Law: Women’s Equality, Report No 69, Part II, Sydney, 1994.
[3] Fehlberg, B., Sexually Transmitted Debt: Surety Wives and English Law, Clarendon, Oxford, 1997.
[4] Graycar, R., ‘Hoovering as a Hobby and Other Stories: Gendered Assessments of Personal Injury Damages’, (1997) 31 University of British Columbia Law Journal 17.
[5] See, for example, Stewart, M., ‘Reforming Tax for Social Justice’, (1998) 23 Alt LJ 157.
[6] See, for example, A. Edwards and S. Magarey (eds), Women in a Restructuring Australia, Allen and Unwin, Sydney, 1995 and Spender, P., ‘Exploring the Corporations Law Using a Gender Analysis’, (1996) 3 Canberra Law Review 82.
[7] See Family Law Reform Act 1995 (Cth). In relation to family law, see also the 1999 Discussion Paper, Property and Family Law: Options for Change, Attorney-General’s Department, 1999 which seems to suggest that women’s increased workforce participation means that ‘marriage is becoming increasingly recognised as an economic partnership’ (para 5) without noting the part-time and casualised nature of that participation. See article in this issue of Alt LJ by Renata Alexander.
[8] Thornton, M., Dissonance and Distrust, Oxford University Press, Melbourne, 1996.
[9] Law Society of NSW, Profile of the Solicitors of NSW 1998, Research Report 2, 1998 Table 7.
[10] Victorian Bar Council, 1998. See Hunter, R. and McKelvie, H., ‘Gender and Legal Practice’, (1999) 24(2) Alt.LJ 57.
[11] Harvey, C., ‘All Rise, Women in the Law Set a New Benchmark’, Australian, 16 April 1999, p.3.
[12] See Bird v Free and Others (1994) 126 ALR 475 and see generally Graycar, ‘The Gender of Judgments: Some Reflections on Bias’, (1998) 32 UBCLR 1.
[13] R v Ewanchuk (1999) 169 DLR (4th) 193, www.droit.umontreal.ca/doc/ csc-scc/en/rec/html/ewanchuk.en.html
[14] See National Post, 27 February 1999 and subsequent issues: www. nationalpost.com
[15] ‘Heroines of Fortitude: The Experiences of Women in Court as Victims of Sexual Assault’, Department for Women, Sydney, 1996; Heenan, M. and McKelvie, H., ‘Evaluation of the Crimes (Rape) Act 1991’, Attorney-General’s Legislation and Policy Branch, Department of Justice, Melbourne, 1997.
[16] See MCCOC, Discussion Paper, Model Criminal Code: Chapter 5 — ‘Sexual Offences Against the Person’, November 1996.
[17] See Evidence Amendment (Confidential Communications) Act 1997 (NSW) and Evidence (Confidential Communications) Act 1998 (Vic) and Cossins, A., ‘Tipping the scales in her favour: The need to protect counselling records in sexual assault trials’ in P. Easteal (ed), Balancing the Scales: Rape, Law Reform and Australian Culture, Federation Press, Leichhardt, 1998.
[18] Smart, C., ‘Feminism and Law: Some Problems of Analysis and Strategy’, (1986) 14 International Journal of the Sociology of Law 109.
[19] See R v Davidson [1969] VR 667 (the ‘Menhennit ruling’) and R v Wald (1971) 3 DCR (NSW) 25 (the ‘Levine ruling’).
[20] CES v Superclinics (1995) 38 NSWLR 47.
[21] Graycar, R. and Morgan, J., ‘“Unnatural Rejection of Womanhood and Motherhood”: Pregnancy, Damages and the Law — A Note on CES v Superclinics’, (1996) 18 Sydney Law Review 323.
[22] See Superclinics Australia Pty Ltd v CES and ors, In the High Court of Australia, No S88 of 1996, Transcript of Proceedings, 11 September 1996.
[23] Kirby J did not sit: he had been a member of the Court of Appeal when it considered the matter. When the application for leave to intervene was made, Brennan CJ said: ‘... I have asked the Senior Registrar to inform counsel that I know Father McKenna, a deponent to one of the affidavits in support of the application to intervene, or to appear amicus curiae, and a number of members of the Australian Catholic Bishops’ Conference’, Transcript of Proceedings, 11 September 1996, at p.4.
[24] This contrasts quite sharply with the situation in Canada where the Women’s Legal Education and Action Fund (LEAF) has intervened in a series of cases, including before the Supreme Court of Canada, on behalf of women. Some of this work is described in Razack, S., Canadian Feminism and the Law, Second Story Press, Toronto, 1991 and see LEAF, Equality and the Charter: 1985–1995, Emond Montgomery, Toronto, 1996.
[25] See Superclinics Australia Pty Ltd v CES and ors, In the High Court of Australia, No S88 of 1996, Transcript of Proceedings, 12 September 1996.
[26] See Wainer, J., ‘Abortion before the High Court’, (1997) 8 Australian Feminist Law Journal 133.
[27] See ref 26 above.
[28] Cf for Australia, Ansett v Wardley (1984) EOC 92-002, and Sex Discrimination Act 1984 (Cth).
[29] See Factum of the Women’s Legal Education and Action Fund (LEAF), in Daigle v Tremblay, at para 35 (reproduced in Equality and the Charter, ref 24, above).
[30] See Factum of the Intervenor, The Elizabeth Bagshaw Society, Everywoman’s Health Centre Society (1988), The BC Coalition for Abortion Clinics, The BC Women’s CARE program and the Women’s Legal Education and Action Fund in R v Lewis, Supreme Court of British Columbia, 1996, para 28.
[31] Bunkle, Phillida, ‘Calling the Shots: The International Politics of Depo Provera’, in Second Opinion: The Politics of Women’s Health in New Zealand , Oxford University Press, Auckland, 1988, at n.13.
[32] See the discussion by Brennan J (as he then was) in Marion’s Case (1992) 175 CLR 218 at 275.
[33] There was a suggestion at the time that the Abortion Providers’ Federation would be raising the same issues as WEL and therefore WEL’s application might have been refused.
[34] These charges were eventually dropped.
[35] See Cica, N., ‘Ordering the Law on Abortion in Australia’s “Wild West’’’, (1998) 23 Alt LJ 89.
[36] See Acts Amendment (Abortion) Act 1998 (WA). Compare this with the recent ACT amendments. In 1998, the ACT parliament enacted the Health Regulation (Maternal Health Information) Act 1998. The Act provides that where an abortion is proposed, a medical practitioner should provide a woman with information about the medical risks of termination of pregnancy and carrying a pregnancy to term, any risks specific to her, any particular medical risks associated with the type of abortion procedure proposed and ‘the probable gestational age of the foetus at the time the abortion will be performed’ and offer referral to appropriate counselling (s.8). However, non-compliance with these provisions does not affect the lawfulness of the abortion performed for the purposes of the Crimes Act 1900.
[37] See Sheehy, E.A., ‘Feminist Argumentation Before the Supreme Court of Canada in R v Seaboyer; R v Gayme: The Sound of One Hand Clapping’, (1991) 18 Melbourne University Law Review 450.
[38] See Teasdale, L., ‘Confronting the Fear of Being ‘Caught’: Discourses on Abortion in Western Australia’, (1999) 22(1) University of New South Wales Law Journal 60.
[39] See Thornton, ref 8, above.